The Past. It's Always the Past.

"The past," Faulkner famously said, is never dead.  It's not even past."

So when this blawg returned two days ago from what certainly seemed the dead, it was a Faulknerian return hearkening to and including (resurrecting, if you will - and I will even if you won't) it's own past as well as . . . . Feh, you get the point.

But it wasn't just here, not just me.  For my blawg's resurrection reminded Greenfield of what this blawgging world used to be.  It was fun and lively and, frankly (I really do believe this) important.  We wrote because we had things to say, things to get off our collective and individual chests.  We challenged, squabbled, supported, disagreed.  And it was worth it.  Day after day.

And posting, and then Greenfield, made me remember, made me feel the loss.  And so, maybe I'm back.  Just maybe.

As it happens (and that was all kind of a digression, so really you could have skipped over it), in my more-or-less retirement out here in Phoenix where the sun don't seem ever to stop shining, I'm in a couple of book groups.  This month, the discussion for one of them will be about David Enrich's new book: Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.  

Enrich details how folks with a lot of money (and some without a whole lot who are often bankrolled by folks who do), want to and try with some success to undermine the First Amendment's protections of free inquiry and reporting.

Look, the basic idea, as the folks at One First Street in DC (that's the Supreme  Court) have made clear over the decades, the First Amendment protects even falsehoods about public figures as long as they're not reported with actual malice.  And actual malice doesn't mean that the speakers/writers doesn't like the person about whom the falsehood is offered but, rather, that they either knew it wasn't so and said it anyway or were recklessly indifferent to the question, that they didn't exercise even minimal care to try and get it right.

That's the standard SCOTUS adopted some 61 years ago in New York Times v. Sullivan.  And despite some grumbling by Clarence Thomas and Neil Gorsuch who think it should be jettisoned, it remains the standard for libel.  

Though he does, like so many, get the claim Holmes asserted wrong,* Enrich generally gets stuff right.  And his book serves as a powerful reminder of just why Sullivan is so damn important, why, therefore, so many folks on the right and on the left would like to junk it, and how essential it is that we the people fight back.

Anyway, as I was reading the book, I realized that I'm almost certainly (and here we go again, because the past is never dead) the only person in the book group who's ever been sued for libel.  Rakofsky v. the Internet (or, as it's technically named, Rakofsky v. the Washington Post, et al. I, of course, am one of the 73 in that "et al" or as we sometimes referred to ourselves collectively, "The Rakofsky 74."

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* Enrich claims the rule Holmes set forth is that "you can't say fire in a crowded theater."  Tim Walz, among countless others, repeated that rule in his VP debate with J.D.  What Holmes actually said in Schenck v. United States was far more nuanced (and is still not the law today - if it ever was):  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” 

The Theory of Our Constitution

Back in the 1950s, Bob Hope used to tell this joke.

An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded."It's no different here. Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."

* * * * *

We begin at the beginning, with the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Justice Black looked at those words and famously said, "No law means no law."

I suppose he may have said that at one time or another, but the actual quote is from a concurring opinion in Smith v. California. It's worth quoting the whole passage.

I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge.

Oddly, Floyd Abrams doesn't quote that passage in The Soul of the First Amendment, his new book about the speech and press protections of the First Amendment. 

Nor does he quote Holmes, dissenting in Abrams v. United States:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

But if Abrams doesn't quote Black or Holmes in this brief book, he channels them.

Here, he says, is how it works in the United States under the First Amendment.  At least, how it works now and how it has generally worked since somewhere in the middle of the last century. 

Speech is protected.  The press is protected.

The government doesn't get to tell you what you can say and what you can't.  The government doesn't get to decide who can speak and who can't.  The government can't prevent people from saying offensive things.  It doesn't get to decide that the New York Times can have a voice but Breitbart can't.  

Or the other way around.

It's legal - offensive and hateful and stupid, but legal - to spout racist claptrap and insist that the Holocaust didn't happen and it's too damn bad.

Truth is an absolute defense to defamation.

And corporations?  They really can spend their money on advertising to try and influence elections.

You may not like it.  You may prefer the greater privacy protections in Europe.  You may prefer to prevent speech you consider hateful.  You may think Citizens United was the worst, most wrong-headed decision the Supreme Court ever issued.  

And you may believe with every fiber of your being that Berkeley should prevent Ann Coulter from speaking there and that if Berkeley lets her in it would be proper to fire bomb the auditorium in order to shut her voice down.  Ulrich Baer, you may insist, is right when he claims in the Times that the remedy for bad speech is to stifle it, that it's only those who don't intuitively understand the harm of speech who believe that the remedy for bad speech is more speech.

But that's not our system.  Our system, as Abrams makes clear, is unique in rejecting every one of those things.  With the narrowest of exceptions (and still too many, some of us would argue), Hugo Black was right.  No law means no law.  The "spirit of the First Amendment," he says, is "its anticensorial soul." 

You're free to insist that he's wrong, of course, or that he should be.  You can speak out against free speech and the First Amendment as much as you like.  The First Amendment gives you that right. Maybe it would be better otherwise.  They think so everywhere else in the world, and maybe they're on to something.

Or maybe not.  Floyd Abrams thinks not.  Abrams is 80 years old.  He's been litigating these cases for decades.  And winning them.  

In The Soul of the First Amendment he tells the story of how "no law" came to mean something close to "no law."  He shows how it is that our approach to free speech really is unique.  And he explains, argues, why he thinks it's a good thing.

There are, of course, serious questions.  That you can speak doesn't necessarily mean that you should. In the book's final chapter he explores how "free speech should be responsibly exercised."  That's not a legal question, of course, and "[t]he First Amendment provides no answer to this question.  It never does."

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My thanks to Yale University Press for sending me a copy for this review.

Lying liars and the lying liars who point them out

How can you tell when a politician is lying?
His lips are moving.

It's in the list of Thou Shalt Nots, number 9 in the Decalogue (except for those who count it as 8, but that's beside the point here).

Thou shalt not bear false witness against thy neighbor.

(As the King James Version puts it.)

It's one of those things you were taught in kindergarten.  And really, nobody much disputes the general principle that lying is a bad thing.*  Which means, of course, that it should be a crime.  Because every bad thing should be a crime, right?  After all, can't have people doing bad things.

Except, well, there's that sticky First Amendment.  Consider Xavier Alvarez.  Anthony Kennedy described him in United States v. Alvarez.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U.S.C. § 704.

In its then-current form, the Stolen Valor Act provided

"(b) FALSE CLAIMS ABOUT RECEIPT OF MILITARY DECORATIONS OR MEDALS. — Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both.
"(c) ENHANCED PENALTY FOR OFFENSES INVOLVING CONGRESSIONAL MEDAL OF HONOR. —
"(1) IN GENERAL. — If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both."

And the Court said 

No.

Kennedy explained, citing Orwell's 1984.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth.

While the Court wasn't unanimous in result or rationale (the vote was 6-3, but Kennedy's opinion was only for himself, Roberts, Ginsburg, and Sotomayor; Breyer wrote separately for himself and Kagan agreeing that the law was unconstitutional but in a far less sweeping opinion), the point was made.

Which brings me to the Ohio Revised Code, Section 3517.21, the one that makes it a crime to lie in an election campaign.  Really.

(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term "re-elect" when the candidate has never been elected at a primary, general, or special election to the office for which he or she is a candidate;
(2) Make a false statement concerning the formal schooling or training completed or attempted by a candidate; a degree, diploma, certificate, scholarship, grant, award, prize, or honor received, earned, or held by a candidate; or the period of time during which a candidate attended any school, college, community technical school, or institution;
(3) Make a false statement concerning the professional, occupational, or vocational licenses held by a candidate, or concerning any position the candidate held for which the candidate received a salary or wages;
(4) Make a false statement that a candidate or public official has been indicted or convicted of a theft offense, extortion, or other crime involving financial corruption or moral turpitude;
(5) Make a statement that a candidate has been indicted for any crime or has been the subject of a finding by the Ohio elections commission without disclosing the outcome of any legal proceedings resulting from the indictment or finding;
(6) Make a false statement that a candidate or official has a record of treatment or confinement for mental disorder;
(7) Make a false statement that a candidate or official has been subjected to military discipline for criminal misconduct or dishonorably discharged from the armed services;
(8) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a candidate by a person or publication;
(9) Make a false statement concerning the voting record of a candidate or public official;
(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.

Which, as it happens, leads to several points.  First, there's the lawsuit that worked it's way up to the Supreme Court which in a unanimous opinion. ironically written by Clarence Thomas who doesn't speak at all in oral argument, didn't actually resolve it. 

The Susan B. Anthony List, an anti-abortion "advocacy organization,"** ran ads, and tried to put up a billboard, accusing Steve Driehaus, an Ohio congressman, of voting for taxpayer-funded abortions on the basis of his having voted for Obamacare.  Driehaus denied that he voted for the abortions (though he didn't deny voting for Obamacare) and filed a complaint under 3517.21.  So the list sued and eventually Clarence Thomas explained not that the law was unconstitutional but that the List has a right to continue litigating whether it's unconstitutional.

And that is what led David Schultz, "professor of political science at Hamline University and also a University of Minnesota School of Law professor, where he teaches election law," to write an op-ed in the Plain Dealer asking

Is There a First Amendment Right to Lie in Politics?

His answer is that there isn't - or at least shouldn't be.

Ethically there should be no debate that lying is wrong in politics. One should hope as a matter of personal virtue and integrity that this would be the case. But personal integrity is not always enough. American politics is littered with records of lies and deceptions, be it Bill Clinton's false assertions about his relationship with Monica Lewinsky or Swift Boat Veterans for Truth distorting John Kerry's Vietnam record. Something more is needed to encourage personal integrity in politics.
. . .
Surveys indicate that a majority of Americans think quite a few politicians are crooks and barely a quarter of the population trust the government. There are many reasons why the voters have become increasingly more cynical about politics and why they distrust politicians. Perhaps public perception of increased lying in the political process is a factor. Making it clear that the First Amendment does not protect political lies is one way to strengthen democracy and encourage better political behavior.It's not that easy, of course.

Which is all well and good except that it's absolute bullshit.  Because, see, even if you could make the law truly narrow - make it a crime intentionally to say something you know to be false in the context of an election and make it so publicly that people are likely to hear it and be persuaded by it - and even if you could somehow make it a law that would pass First Amendment muster or would convince the Court to carve out a new First Amendment exception

• Who's gonna be the judge?  
• Who's gonna decide what's true?  
• Who's gonna determine what you knew?  What you intended?  What's sufficiently public?  
• And who's gonna decide the likelihood of persuasiveness?

Read the comments to Schultz's column.  See the commenters calling each other liars.  Which of them do you trust?  

Oh, make it a non-partisan commission, of course.  Six Democrats and Six Republicans.  Natch.  Of course, there are other parties, other views.  The Ds and Rs might think they're all liars.  But . . . . Newspapers have truth meters.  There are fact checking websites.  They all disagree some of the time.

Is dishonesty a problem in American politics?  You bet.  Is the law the solution?  Absolutely not.  And you know, if the people cared enough, they'd do their own fact checking.

 

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*Except, of course, when it's a good thing or at least OK.

**Thomas calls it a "pro-life advocacy organization," but that's buying into their marketing.  Anti-abortion folks aren't "pro" all life.  While certainly some are also opposed to executions others are not. Some oppose hunting and are vegetarians, others are not.  Few would likely balk at setting out ant traps to keep the bugs out of the flour.

And yes, "pro-choice" is also marketing, referring to a particular choice.  There are lots of other choices those who favor the right to abortion (not-the obligation - "pro-abortion" isn't exactly right, either) don't endorse.  None of that is what this post is about.

"While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death"

He had no problem with eugenics.  He made that plain in Buck v. Bell when he explained that really, it's not just OK but basically desirable that we forcibly sterilize "defective persons" for the good of society.  Making the point, as he so often made his points, forcefully.

Three generations of imbeciles are enough.

He had no trouble finding, in Fox v. Washington, that there was no constitutional problem with prosecuting Fox for advocating nude swimming.

If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it.

And during a chance encounter on a train with Judge Learned Hand, when the judge tried to convince him that the Constitution demanded and good sense required toleration of dissent, he rejected the very notion.

As a believer in society's right to impose its will on the individual, he thought persecution of dissenters made perfect sense.  And as a former soldier who had taken up arms against his fellow countrymen, he was not afraid to follow that principle to what he thought was its logical, if shocking, conclusion. "You strike at the sacred right to kill the other fellow when he disagrees."

After all,

He disdained all constitutional rights.

Those last two inset quotes are from Thomas Healy describing Oliver Wendell Holmes, he of the quite spectacular moustache, in his book The Great Dissent: How Oliver Wendell Holmes Changed His Mind - and Changed the History of Free Speech in America. 

That may not be the Holmes you recall, the Holmes who wrote powerfully about free speech, who defended the rights of the workingman against a repressive view of constitutional liberty, who was an iconoclastic champion of progressive legislation.  But it is indeed the same Holmes.   And how he got from Point A (killing the fellow who disagrees) to Point B (the great advocate of free speech), well, that's the story Healy tells.

It begins with that conversation he had with Learned Hand, continues through the lobbying of Harold Laski, and Felix Frankfurter (before his time on the Supreme Court), and Zechariah Chafee.  And by Louis Brandeis (during his time on the Court) though Brandeis probably deserves more of a place than Healy gives him.

Ultimately, Healy suggests, it wasn't the lobbying so much that turned Holmes as the discovery of consequence.  Back in 1881, in The Common Law, Holmes had written

The life of the law has not been logic; it has been experience.

And so it proved for him.  

What seems, finally, to have made the change was not any of the arguments from Hand or Laski or Frankfurter or Chafee or Brandeis.  It wasn't an epiphany about the abstract importance of constitutional rights or the values of individual liberty against the interests of society.  (Buck v. Bell, after all, was 1927, 8 years after Holmes had his transformation from opponent of free speech to advocate.)  What changed Holmes was that he saw the harm that punishment for speech did to his friend (virtually his adopted son, Healy suggests, though he doesn't say that) Laski.

For what had been merely an abstract question for Holmes over the apst year was, suddenly, concrete and personal.  The face of free speech was no longer Eugene Debs, the dangerous socialist agitator.  It was his good friend Harold Laski, and Holmes's views shifted accordingly -- and dramatically.  He still did not have a theory of free speech that satisfied him, but he now delared himself willing to die for it, just as he had been been willing to die for the cause of the Union six decades earlier.

And so it came to pass that in 1919, just months after enthusiastically upholding the criminalization of speech that merely criticized, Holmes dissented.  The case was Abrams v. United States, and this time Holmes dissented.  He denied any change in attitude or position. Perhaps he even believed his denial.  But it was bullshit.  He completely reversed himself.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

The words ring.  And as Healy says, they led to an upheaval in First Amendment law.  (Though it's a constant fight, still, as all constitutional rights are always in jeopardy.)

I need to shift gears for a minute.  As I said, the words ring.  The man could write.  But they're also, I think, wrong.  Not wrong insofar as they assert that the Constitution protects free speech.  Wrong, rather, insofar as they claim that the idea is that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" or that such is "the theory of our Constitution."  I don't buy it.  

It's Mark Twain or maybe Winston Churchill or perhaps C.H. Spurgeon or someone else or all of them who said that "a lie gets halfway around the world before truth has time to put its pants [or britches or boots or whatever] on."  The idea that truth wins out because it's just got some basic force, seems to me self-evidently false.  And, in any event, how would we know?

The virtue of free speech, and the Constitutional need for it, is that only if we can speak freely can we truly think freely. That's a virtue in itself.  And in a republican system where ideas are to be debated and voted on, there must be room for that debate.  Not because the result will be right, but because it's the only way a public decision can be made.  The people decide, even if they decide stupidly.  But what they can't decide is to do away with the right to fuss and carry on.   That's "the theory of our Constitution."

OK, that's me, not Holmes.  For Holmes?  Read Healy's book.  He's got a great story to tell, and if he's more infatuated with Holmes than I am?  Hell, he wrote a book about the guy.  And it's a dandy book.

Like Evan Mandery in A Wild Justice, Healy provides legal history and analysis through storytelling and anecdote.  It's fun.  It's interesting.  And it's important.

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My thanks to Metropolitan Books for sending me a copy to review.  

You Could Lose Your Job For Saying That. Your Father Did

Like Hamlet (in this one way only) I have dithered far too long. 

It's been months since NYU Press kindly sent me a copy of Priests of our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, the more-important-than-she-really-lets-on but not-quite-so-good-as-it-should-be new book by Marjorie Heins.  I haven't reviewed the book until now because, well, because I couldn't quite put my finger on exactly why either of those things is true.

I think I've got it now, though, and with it comes the understanding of why I was having trouble.  There aren't two issues here.  They're really one.

Heins takes her title from Felix Frankfurter's concurring opinion in Weiman v. Updegraff, a 1952 case in which the Supreme Court addressed a loyalty oath that public employees in Oklahoma were required to take as a condition of their jobs.  As it came to the Court, the folks who were challenging the oath were faculty and staff of Oklahoma Agricultural and Mechanical College.  The court found the loyalty oath unconstitutional, but on narrow, technical grounds of due process rather than on the broad grounds that might have dealt a death blow to such silly and offensive demands of declared patriotism.

Frankfurter, the former law professor, offered an encomium to the academy and those who toil within it.

To regard teachers—in our entire educational system, from the primary grades to the university—as the priests of our democracy is therefore not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.

It's powerful language, a potent idea, and Heins buys it completely. 

I'm a shade less convinced than she that it's right.  More precisely, I'm not convinced that the second sentence is right.  Teachers are, I'm comfortable saying, invaluable.  (Disclosure, again since this is stuff I've said before:  My first career was English professor; my wife is a professor and a Dean; both my children are in PhD programs - one in the humanities, one in the social sciences; I believe deeply in the academic enterprise.)  But I'm not at all sure that they have any special responsibility to make "responsible citizens" of a particular (open-minded and critically thinking) ilk (or any other ilk, for that matter).

It is their job, rather,  and their duty, to educate.  If they do their job properly and well, students will secure some skills (e.g., basic computation; writing coherent sentences), attain some information (e.g., there was this thing commonly called the Civil War; the earth moves around the sun), they will have learned how to consider and evaluate and parse.  But inculcating the habit of using those skills and that knowledge and that ability?  Becoming open rather than closed-minded?  Frankfurter may have thought those desirable goals.  Marjorie Heins, I think, does.  Frankly, I'd like it if more people were open-minded and actually thought critically and wrote coherently.  But I don't think the schools are there to push that.

The job of teachers (my god, I'm sounding a bit like Stanley Fish here) is to educate, to develop capabilities and capacities.  It's not to get students to use them in particular ways (beyond the disciplinary requirements of their coursework).  That's indoctrination, not education.

In some ways, that's largely beside the point here, since Priests of Our Democracy doesn't argue that teachers should be indoctrinating.  Yet it's also exactly to the point since the thrust of most of the book is that "academic freedom" as a concept and a recognized value developed in large part to protect teachers from charges that they were indoctrinating.  And those charges led to witch hunts.
We often refer to it as McCarthyism, though Heins regularly points out that his particular witch hunts weren't the ones she's mostly writing about. 

And that's a piece of the problem.  Her topic is bigger than her focus, which fuzzes things up.  There's all this discussion of the history of red-hunting in the New York City public schools and universities.  Heins spends a lot of time rehearsing the players - administrators, investigators, inquisitors, those who rolled on their colleagues and those who did not - and who did what to whom and when and how enthusiastically. 

There were the folks who were purged because it was said that they were once members of the communist party.  And perhaps they were.  And the courts, when the cases got to the courts, generally acquiesced in those purges because commies teaching our children arithmetic will necessarily teach Stalin and urge revolution against the Good Ol' US of A along the way.  And god help us if we let a commie teach history.

But then there were the loyalty oaths and the folks who were purged because they wouldn't make public declarations of patriotism.  And the courts sometimes struck those down because this or that oath was just too damn confused.

And along with this there was the development of this idea of academic freedom which said that teachers had a right to think what they liked and should only be judged by how they actually performed their jobs - not what they might have believed on the side.  And the courts didn't buy into that, because there was this rights/privileges distinction the Supremes developed (you have the right to think and say what you want, but it's a privilege to get to actually hold a job or get to eat dinner and while you can certainly say terrible things, you can damn well be fired and blacklisted for them.

All of this is important.  Heins knows it.  She's not just telling a story, after all.  She's making a point:
Teachers are, indeed, the high priests of democracy, and they must be allowed to teach without fear and to speak and think without fear or they won't get to set the examples of fearless and independent thought (which is to be open-minded and critical, you'll recall) and inculcate those behavioral models in their students.  Teachers, that is, must not be presumed to indoctrinate in bad ways and must not be purged for indoctrinating since what we really want them to do is to indoctrinate in good ways.

But it's less than absolutely clear just what that has to do with loyalty oaths except that they were pursued with a vengeance as part of our anti-communist hysteria and were back in, for instance, Ohio, as part of our anti-Al Qaida hysteria.  Heins notes Ohio for that, mentioning that there was only one legal challenge to its statutory post-9/11 loyalty oath for state employees or folks doing business with the state, and that challenge  was resolved in favor of the challenger but without an actual ruling on the merits of the oath.  (More disclosures - Heins called me at one time to ask what was going on in Ohio with its oath, and I was counsel for the guy challenging the oath in that case.)

But it's too much.  Heins switches back and forth.  She delves too deeply here, reporting in painstaking detail just what happened at this interrogation and just how fine a teacher this person was.  Then she flits through 35 years and drops briefly into some other possible purge only to head back to from where she came.

The thing is that she wants, really to be writing about Academic Freedom and she wants to write about anti-communist hysteria and what it wrought and she wants to write about how the Supremes likes the idea of liking the First Amendment a whole lot more than they like the actual amendment which leads to messy things like protests on the steps of the court and high school students with a sign proclaiming 

Bong Hits 4 Jesus

But see, if you spend 230 pages (I'm making up these numbers) on how all of this worked and developed through 1970 or so, and then 30 pages on how it's coming around again - albeit less horrifically and with Islamic fundamentalists rather than communists as they bogymen -- well, if you do that, it isn't exactly even and the latter part, which is really about how all this still resonates today and don't think it doesn't because it absolutely does, gets short shrift.

Which is OK.  Because she gets to write the book she wants, which is more about times before than the times now, but she tosses in just enough of the times now to leave the reader unclear about just where we are.  And what might happen next.

There is, of course, a bottom line.

Priests of Our Democracy is a really good book.  Heins does a terrific job of telling her story.  And it's an important story of what is ultimately irrational fear and anti-semitism and mob rule (though the mob that was ruling was elected and high appointed officials.  It would be counterfactual history (what if the Nazis had won) except that it isn't actually counterfactual.  And it's a solid reminder that the courts can do good or ill and that the seeds of victory can be sown in defeat, but that victory can be snatched away, too.  (And, as an aside, victory for one perspective is loss for another - a point Heins doesn't actually make, but one that's worth remembering.)

But Priests of Our Democracy should be better.  Heins knows, and actually understands, that these struggles are ongoing, that we face the same issues - albeit in slightly different form and with generally fewer outright purges - today.  But her failure fully to develop that - to show how we moved from where we were to where we are, and how it's not really very far and looks a whole lot more like those days than we really want to accept - that's a real weakness. 

The book should resonate.  It's not like Heins is dispassionate, has no point of view.  She does, indeed have one.  Had she pushed a bit, she'd have given us not just an academic tome (and really, although published by NYU press, it's not really a dry academic tome) but something of a clarion call.  You can tell she wants to do that.  Sadly, on that score she falls a bit short. 

In Our Culture But Not in Our Genetic Code

“Freedom demands a certain risk,” David Shipler wrote last year in The Rights of the People: How Our Search for Safety Invades Our Liberties. It’s a risk, he argued, we are too rarely prepared to take. To make that point Shipler examined breaches in what he called the physical boundary between the individual and the state, guarded by the Fourth Amendment. But Shipler was after more.  He knew that the Fourth wasn't the only Amendment jeopardized by the insistence that safety and security were more important than liberty. So he knew from the start that the "landscape [was] too vast."  So The Rights of the People was just the first volume.

The second volume is Rights at Risk: The Limits of Liberty in Modern America. It's out now, and it's as powerful as the first. This time Shipler focuses his attention on the First, Fifth and Sixth Amendments

Shipler understands the value of a good story, and he tells lots of them. He talks about the Chicago police torturing often innocent suspects to extract confessions from them and send them to prison or better yet (from the point of view of the cops) to the gurney.  And he reports on torture from wherever it was that John Yoo said it was cool for federal agents to waterboard Khalid Sheikh Mohammed because torture isn't really torture unless you're dead at the end and, besides, he was a bad guy and safety and security and who gives a shit about those sorts of niceties anyhow?  Oh, and he looked funny.

In his chapter on false confessions (what? you don't think they happen?), he notes that some two hundred people confessed to kidnapping the Lindbergh baby, and tells how the Central Park Five were essentially gulled into confessing to the rape of jogger Trisha Meili, a rape they didn’t commit.  And then he talks about the Reid technique, a manipulative method of interrogation that has a great track record for getting the innocent to admit guilt.

Clarence Earl Gideon

He begins a chapter on the rights to counsel and especially to effective assistance with the tale of Anthony Ray Hinton who’s been on Alabama’s death row for some 26 years since his trial counsel hired as a firearms expert “a one-eyed retired engineer who couldn’t operate a comparison microscope [and] had jurors laughing in ridicule.” And of course he talks about Gideon.

But it's not just the path breaking cases, the ones that make the headlines. It’s the ordinary, the quotidian. The path is worn now, but ill-tended. It buckles. It gets overgrown with weeds. You can follow the trail, but you may trip and stumble. And you're apt to ask why bother because it's just there and doesn't look all that much different from the surrounding terrain. Because these things really do happen every day. Maybe there's a lawyer, but barely because he's asleep, which is maybe dramatic enough to get noticed (see here, for instance), though sadly it happens often enough that the press often doesn't bother covering it and the courts too often blow it off).  And maybe there was a confession to what he didn't do and maybe he was convicted (or not or got really lucky and had the charges dismissed or really really lucky (following a run of awful luck) and got post-conviction exoneration. Or not.

Mary Beth and John Tinker

So while Shipler tells us about the famous (at least to lawyers and their hangers on), there are the others. Along with Gideon and Mary Beth Tinker, he speaks of people you’ve likely never heard of: Clemente Zavaleta and Mohammed Maddy and Barry Reingold, for instance. Theirs are the more typical stories of ordinary men and women. Some committed crimes. Some offended sensibility. Some seem to have been random victims of happenstance.

Of course, stories are not proof, and Shipler knows better than to pretend they are. Instead, he uses the stories to animate the argument, to provide the examples that show not only what can happen but what does. They are tied to the executive, legislative, and judicial decisions that spawned them. And their very ordinariness is part of the point.

Shipler makes that explicit when talking about the oppressive caseloads and lack of resources facing too many public defenders and appointed counsel.

The problem is even more insidious than the dramatic cases convey. The defects are nourished not just by individual malice but by systemic failure, an uncaring set of priorities that unbalances the adversarial process.

It’s not, after all, that in the aftermath of 9/11Shrub told Ashcroft that he hated the Fourth Amendment and wanted it ignored. (Really, that's not what he said.)  It’s that W simply didn’t consider the Bill of Rights when he said, “Make sure this never happens again.” The effect on the Fourth Amendment was consequential, but not precisely intentional. Similarly, when the courts allow police like Detective Tom McKenna, “to use guile and ruse," they probably expected (if they gave it even a moment's thought) that he’d do that (“and we do,” he added). But it's unlikely that expected that he'd use them to get false confessions from the Central Park Five. The courts were just thinking, if they were thinking at all, about how to get the bad guys.

The erosion of civil liberty is gradual, a slow eating away at our rights, a point Shipler makes nowhere more clearly than in his chapter on free speech and press in schools. Justice Fortas gave us  sweeping words in Tinker.

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But they give way when a high school student in Connecticut called her school principal and the superintendent “douchbags” and was punished by being denied the chance to run for senior class secretary. Then-mere-Judge, not-yet-Justice Sotomayor was part of the unanimous Second Circuit panel that ruled against her.

Shipler’s is, ultimately, an exhortation. 

The Bill of Rights is in our culture but not in our genetic code. . . . [Unless] taught and exercised until it becomes an intuitive ingredient of being American, it gradually succumbs to peer pressure, institutional hierarchy, and apathy.

And then, as he doesn't quite say, it dies.

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Thanks to the National Association of Criminal Defense Lawyers for sending me a review copy of Rights at Risk.  A version of this review will appear in The Champion, NACDL's monthly magazine, sometime this summer.

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Free Speech - Sort Of

I wasn't going to write about the Supreme Court's decision in Snyder v. Phelps.

I figured there was really nothing much for me to add.  I assumed that many of my brothers and sisters of the blawg would offer generalized praise for the decision, coupled with reminders that even the most evil speech (which Westboro's is) by the most repulsive folks is (which Westboro's are) is entitled to First Amendment protection.  (It doesn't deserve that protection; it gets it because, like clemency, it's about us not about them.)

And, of course, a number have.  (See, for instance, Turley, Mayer, and of course and especially Randazza.)  And then Scott Greenfield jumped in.

It's not that Scott disagrees with the general view.  Yes, the Court got it right, he says.  But we should be grateful to Alito for dissenting as a reminder that - feh.  Here's what Scott wrote.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.  

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn't walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.

It's true, sadly, that while the majority opinion by the Justice with the self-satisfied smirk that he probably mistakes for a smile (that's Roberts) lays out in detail and with appreciation the powerful First Amendment issues in the case, its legalistic approach does little to capture the depth of repulsion we all should feel (and hope that Roberts and the rest feel) at what Dahlia Lithwick called the "Phelps Family Roadshow of Bilious Bigotry."  And it's fine that someone picked up the slack to make the point.

But Alito's dissent is a problem.  Not because he turns what should have been an easy 9-zip decision into a still overwhelming majority 8-1.  But because it reminds us that Alito really does think there's an exception to the First Amendment for the odious.

This isn't the first time Alito has been alone in staking out an offensiveness exception to the First Amendment's protection of free speech.  He alone believed (see United States v. Stevens) that First Amendment protection could be denied to depictions of animal cruelty.  Here's how Elie Mystal put it.

Call it Free Speech 101. The hard part about the First Amendment is that you have to allow people to say all manner of annoying, vulgar, and inappropriate things, at the wrong times.

Not that Justice Samuel Alito thinks so. Justice Alito was the lone dissenter in this case. He was also the lone dissenter in the Stevens case, in which the Court overturned a ban on animal crush videos on First Amendment grounds.  But he voted with the majority in Citizens United.

(I left in that last line about Citizens United because it finished Mystal's paragraph and it's where he was taking his post.  It's really beside the point here.)

OK, maybe Alito is alone on an otherwise free-speech friendly court.  But today's lone dissenter can be tomorrow's majority voice.  (See Scalia, Antonin.)  And it's never good to have a guy on the Court who just doesn't get it.

Especially when he's not altogether alone.

Because while the decision was 8-1, the majority was not.  Or at least not entirely.

Stephen Breyer, whose view of most Constitutional rights is, shall we say quirky (we shall), joined the majority opinion but felt constrained to write a concurring opinion pointing out that the First Amendment really isn't all that sweeping.

Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Forget all that broad language.  The Phelps family has First Amendment protection solely because this is a fact-bound opinion and the offensive folks walked a very fine line with great care.  Oh, and of course, it's only because they were picketing.  And on an acceptable subject.

The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

Breyer's trod this path before, most tellingly in an interview with George Stephanopolis where he explained (misquoting Holmes) that problematic speech (he was talking about planned Quran burning by another reverend lunatic) really isn't protected.  Here's part of what I wrote at the time adding a word I'd left out and quoting Stephanopolis.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

But, but, but (I'm sputtering here because that makes me so mad).

First, he's got Holmes wrong - and importantly wrong.  Here's the actual quote from Schenck v. United States.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

See the difference?

Holmes said that you can shout "fire" in a crowded theater.  In fact, if there is a fire, maybe you should.  But you can't (Holmes said), shout "fire" in that theater if it's not true and then cause "a panic."  There's no protection, that is, from causing great harm by a lie that you should have known would cause great harm.  

But that's not what Breyer seems to see.  He sees no protection for speech which might result in harm.  And boy is that ever something different.

And damned scary.

It was.  It is.  They are.  Both of them.  Breyer and Alito.

Nat Hentoff wrote a book called Free Speech for Me But Not for Thee.  He was, rightly, critical of that attitude.  There's a couple of guys in Washington ought to read it.

 

Disclosure:  I represented Shirley Phelps-Roper in a partially successful lawsuit challenging Ohio's funeral-protest law as amended precisely to keep the Phelps clan out of the state..

Indiana Wants To Be Ohio

Congress shall make no law . . . abridging the freedom of speech, or of the press.

That's from the First Amendment, and by now it's well settled that it isn't just Congress that's constrained by that "shall make no law" thing.   It's all of government: federal, state, local; executive branch, legislative branch, judicial branch.

Oh, wait.  The judicial branch is just fine with making laws abridging those freedoms.

(Yeah, I know; there are actual laws enacted by Congress and state legislatures that abridge freedom of speech and the press.  Lots of them, in fact.  Nobody who had any say in the matter except Hugo Black ever really thought that "no law" meant no law, and even the good justice didn't really believe it.  But for the moment, I don't care.  The statement is close enough, and this is all just the set up for what I want to talk about.  Ignore that sentence if the detail bothers you.)

Where was I?  Right, the judicial branch.

See, we tend to like free speech as an abstract concept.  It sounds good and noble that the government doesn't get to control what you say.  But the reality is that we mostly don't like free speech all that much.  Free speech absolutist Nat Hentoff put it in a book title.

Free Speech for Me--But Not for Thee

There's actually a sub-title, too, but it's of no moment here.

But back to the judicial branch.  Sigh.

I've made fairly regular mention here of the Mark Gardner Rule.  I discussed it most fully in this post.  The essence of the Rule is that Ohio lawyers (it's an Ohio Rule, made up by the Ohio Supreme Court) cannot criticize the Ohio judiciary.  The court didn't phrase it that way, of course.  But that's essentially what the court said in Mark's case.  Fortunately, they don't apply the rule as rigidly as that makes it sound.  But there's no reason to think they won't if it suits them.

Mark's problem was that he got pissed off at what he viewed as an intellectually dishonest appellate decision.  Then he told the court, in some detail and with no tact whatsoever, what he thought of the decision.  "Foul," cried disciplinary counsel.  "Very foul," said the Ohio Supremes.

Lawyers can, of course, speak the truth about the courts and about judges even if the truth is negative, the court said.  The court also said that truth about courts and judges is what reasonable lawyers believe to be true, regardless of objective fact.  (The court left out that last phrase.)  And because reasonable lawyers believe courts and judges above reproach, anything negative a lawyer says is false and the lawyer can be punished for it.

If you head due west from Ohio, you're going to find yourself in Indiana.  Should you be there in the next 6 months and need a lawyer, don't expect to be hiring Patrick K. Rocchio who didn't know Indiana had the Mark Gardner Rule.

Actually, maybe they don't.  I mean, there's no question that the Indiana Supreme Court slapped Rocchio down hard for saying intemperate stuff, but unlike the Ohio Supreme Court, they didn't articulate a bizarre constitutional standard to justify their action.  They just did it.

See, Rocchio is an attorney in both Michigan and Indiana, mostly practicing in Michigan.  Rocchio was charged in a 2 count disciplinary complaint in Indiana.  In the first count, he was charged with sending a solicitation letter to D.W., an accident victim, without writing on the letter and the envelope "Advertising Material."*  In the second count, Roccio was charged with not mentioning on his website that he had allowed his Indiana license to become inactive.**

These are violations of Indiana's disciplinary rules, but minor ones.  The Supreme Court opinion made that clear.

We find that Respondent, Patrick K. Rocchio, engaged in attorney misconduct that, standing alone, would warrant a sanction in the lowest range.
. . .
This Court has imposed a public reprimand on a number of attorneys who have violated the rules on written communications, e.g., Matter of Benkie, 892 N.E.2d 1237 (Ind. 2008); Matter of Huelskamp, 740 N.E.2d 846 (Ind. 2000), and in some cases an even lesser sanction. Standing alone, that would be our assessment of the sanction warranted here. The addition of the website violation would not warrant an increased sanction.

But the "misconduct" didn't stand alone.

Respondent‟s actions throughout the disciplinary process constitute substantial aggravating circumstances requiring a concomitant increase in sanction.

Ooops.  Here's the Mark Gardner stuff.

Respondent‟s Brief in Support of Petition for Review includes the following:
       It must be stated, at the risk of offending others that anyone who has not suffered a full frontal cranial lobotomy knows that the words published on a Michigan lawyer's law office internet describing his professional narrative, in-cluding his licensing credentials, is not the practice of law in the State of Indiana.
       . . . .
       This rather bizarre and foolish disciplinary process regarding my alleged attorney misconduct long ago moved away from the focus upon the misdeeds de-scribed in the Verified Complaint.
       This proceeding is about behavior and protocol; what to say and how to behave in the presence of the supreme monarchy, or in this situation, the repre-sentatives of the Indiana Supreme Court who alone decide what is and what is not attorney misconduct subject to discipline.
        . . . .
       My experience with the Indiana attorney disciplinary system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self-image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp . . . .

         Similar examples can be found on nearly every page of Respondent‟s briefs to this Court and to the hearing officer, as well as in his correspondence to counsel for the Commission and in his testimony before the hearing officer. The hearing officer noted Respondent‟s invectives against the Commission's former executive secretary ("a first-class ass"), the Commission ("soft and lazy"), the disciplinary process (“a modern day version of the Star Chamber, a Salem witch hunt, or a Spanish Inquisition”), and this Court‟s disciplinary rules (“frivolous and antiquated,” “rules of behavior conceived over a cigar and brandy . . . during the late Victorian Era by a group of self-impressed lawyers”), as well as his repeated use of caustic terminology (e.g., “despicable,” “deceptive and ridiculous,” “naked stupidity,” “cutesy and evasive”). The Respondent also engages in personal attacks on the hearing officer, calling her “sadistic” and displaying “a disappointing level of ignorance, arrogance, and stupidity.” We concur with the hearing officer‟s finding that “Respondent‟s inflammatory statements were not spontaneous remarks made in the heat of the moment, but were his planned, intentional, oft-repeated comments.”
         In addition, Respondent is totally non-repentant. He makes clear that he believes this Court's rules governing lawyer employment solicitation and this entire proceeding are silly. In an email to Commission counsel, he stated that if he had a chance, he would again send the letter to D.W. Near the end of this testimony before the hearing officer, he went into great detail describing how he would essentially do it all over again, at least for a Michigan resident. He stated: "I will not misrepresent the content of my letter by trivializing it with the notation 'Advertising Material,'" and "I will be thankful that Michigan does not attempt to impose frivolous and antiquated regulatory restrictions upon its licensed attorneys . . . ."

I get it that you're supposed to at least seem remorseful.  Any even marginally competent lawyer would have told Rocchio that expressing disdain for the disciplinary process would almost certainly come back to bite him.  Really, he shouldn't have done it, shouldn't have said it.  Even if it's true.  Because his statements may be constitutionally protected.

Except he's a lawyer.

So they're not.

In re Rocchio

Which means he can't say that the court and the judges and the legal system all suck.

I, of course, would never say such things.

Here's Pete Seeger singing Tom Paxton's "What Did You Learn In School Today?"

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*Disciplinary rules routinely assume that members of the public are regularly fooled by advertisements that don't state they are advertisements into hiring lawyers because of what the advertisements say.  Presumably, if the imbecile public were told the lawyer who sent them an ad wanted to be hired, they would hire someone else.  Or something.

**Note that he wasn't charged with representing or even trying to represent anyone in Indiana while his license there was inactive, just in not mentioning on his website that it was inactive.  For the record, my Texas license is inactive.

H/T Legal Profession Blog