This morning the Supreme Court accidentally live streamed part of the opinion announcements. They should just live stream all of these announcements. I see no reason why they are different from oral arguments.
In the past, opinion announcements involved more ad-libbing from the Justices and sometimes got very heated. Perhaps that’s why they don’t want this released live, but that’s not a great reason.
Posted by Gerard Magliocca on April 19, 2023 at 10:49 AM
For $ 787.5 million, just on the Fox side of meeting halfway. Unsurprising.
Settling the typical defamation is problematic from a First Amendment standpoint–the court loses an opportunity to declare First Amendment values and the prospect of that even a nuisance settlement (which partisans will pitch as more, see Nicholas Sandmann) will incentivize new suits. Dominion was the rare case in which the plaintiff had a genuine chance to win and the evidence from the summary judgment record showed genuine wrongdoing by the media outlet. The settlement thus deprives the public of insight into the Fox News’ problematic operations. And Fox News and others retain incentives to do this all over again.
Posted by Howard Wasserman on April 18, 2023 at 05:22 PM
I waited in line for 1 hour, 21 minutes to get gas today. And I ended up at that station because every place closer to FIU, closer to my house, or on the way from my kid’s school to work was out.
Torrential rains last Wednesday caused flooding north of Miami (Fort Lauderdale Airport was closed for a couple days) and slowed gas trucks from getting through to Miami-Dade. There is enough gas. But people began panic-buying and hoarding (drivers filled multiple gas cans in addition to their cars), straining supply. They say it may be a couple of weeks before the situation normalizes.
Fortunately, our governor is handling the problem by threatening to build a prison and release prisoners next to Disney World.
(BTW, Steve: Include this in your list of great baselines).
Posted by Howard Wasserman on April 18, 2023 at 04:17 PM
According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:
Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.
Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.
There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.
The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed–peaceful (must all speech be “peaceful’) and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.
Perrino works off the paradigm of the Judge Duncan/Stanford debacle–invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino’s argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.
I see several problems with that focus and that conclusion.
1) Perrino may be broadly right about that paradigm. He tries to bolster the point that “[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors,” bolstered by a recent story about audience members singing “I Will Always Love You” during the finale of the show The Bodyguard.
Rather than “heckling is never protected speech,” a better framing is “heckling is protected speech, but it yields to content-neutral rules in a forum.” This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech, it remains unprotected when the forum-and its rules and expectations–changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.
2) The premise that “heckling is never protected speech” affects what counter-speakers must do and the form of counter-speech FIRE’s solution is the alternative program–find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.
Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino’s view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s “someone else’s event” that counter-speakers “take over” (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for “prolonged, raucous, boisterous demonstrations” does not appear to matter.
Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting “Jews will not replace us.” Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted “preacher” using the quad. This is an impoverished view of the role of counter-speech.
3) Perrino’s analysis is incomplete within his reserved-classroom paradigm because he does not define “peaceful” or “nondisruptive.” If peaceful means non-violent, the word does nothing–neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech–booing, hissing–up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption–whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.
Positive non-silent reactions–applause, laughter, cheers, snaps–may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.
4) Perrino doubled-down in a Twitter thread, arguing “[i]f you take over someone else’s event, call it what it is: punishable civil disobedience, not free speech.” On this point, I would recommend Jenny Carroll’s (Alabama) forthcoming Yale L.J. article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person’s (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.
5) That the police chief seized on the simplest version of Perrino’s argument–based on the headline that Perrino may not have written–raises further red flags.
6) Perrino (and FIRE) overuse “heckler’s veto.” Perrino criticizes those who argue that hecking is “‘more speech,’ not an attempt to carry out a ‘heckler’s veto’ on the speaker.” A heckler’s veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum’s regulations against a hostile audience; Duncan could have become a heckler’s veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler’s veto. This framing accepts and instantiates the preferred speaker. It assumes a “first” speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and uttering their message more forcefully.
7) I have made this point before. Under Perrino’s argument, the pro-Ally/anti-Nazi patrons of Rick’s engaged in a heckler’s veto or acted as censors here. Or the rules of Rick’s as a forum are different than the rules of a classroom at Stanford Law School. But the “heckling is not free speech” cannot stand as a blanket principle.
I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.
Posted by Howard Wasserman on April 17, 2023 at 10:01 AM
NBA star Domantas Sabonis of the Sacramento Kings is converting to Judaism. He and his Jewish wife keep Kosher and Passover and observe Shabbat (within the confines of an NBA season).
This could be interesting. I think Sabonis is, right now, the third-best Jewish NBA player in history, behind Dolph Schayes and Amar’e Stoudemire (converted in retirement but his career counts as “Jewish” under the Steve Yeager/Joe Horlen Principle). Sabonis is in his seventh year in the league, has made three All-Star teams and should be All-NBA this season. And it could be fun to watch him hopefully stay healthy and climb that ladder. After all, Schayes could not play in today’s NBA and Stoudemire struggled with injuries the last five years of his career.
Domantas is the son of Soviet legend Arvydas Sabonis who played seven excellent seasons in the NBA, but whose best years were lost behind the Iron Curtain. Here is a fun story about Arvydas and his connection to legendary LSU coach Dale Brown.
Posted by Howard Wasserman on April 17, 2023 at 09:12 AM
Late last month, Free Speech for People issued a report that I co-authored on enforcing Section Three of the Fourteenth Amendment. I will have more to say about the report, but today I want to make one observation that is part of an ongoing conversation about this issue.
In my original Section Three article and in this report, I contend that Chief Justice Chase’s interpretation of Section Three in his circuit opinion in In Re Griffin was inconsistent with his conclusion about Section Three in the pre-trial proceedings for Jefferson Davis’s treason trial. (For purposes of this post, it’s not necessary to get into the weeds on that claim.)
With their permission, I can say that Josh Blackman and Seth Tillman are working on a paper arguing that Chief Justice Chase’s Section Three interpretations in Griffin and Davis were consistent and that my reading is wrong. The report alludes to a part of their argument in Footnote 12 and then offers some tentative responses. There is no cite there because Josh and Seth are still working on their draft. But we did have some stimulating email rounds about these questions last year which stuck in my head when I was drafting. I want to make sure they get their due credit.
One takeaway from this is that you should be on the lookout for Josh and Seth’s paper, which will make an important contribution to the Section Three debate. Another takeaway is that we need more Section Three scholarship. Finally, there is a lesson here for law students. I disagree with Josh and Seth on some important aspects of Section Three’s meaning and application. But people who disagree can and should engage with each other in the search for truth. Their criticisms are helping me sharpen my arguments, and I hope that my criticisms are doing the same for them.
Posted by Gerard Magliocca on April 17, 2023 at 08:58 AM
I wrote the following short essay over the weekend, before CNN reported that Justice Thomas is planning to revise his 2014 financial report to include the previously omitted real estate sale to Harlan Crow. Having worked on judicial ethics for many decades, I was trying to figure out a way to excuse Thomas’s reporting failure, but it turns out there was no excuse. I am posting this now because it may still be of theoretical interest. I will have more to say later about Thomas’s repeated revisions — not a good look for a Supreme Court justice.
Is there an excuse for Clarence Thomas? If I try hard enough, can I figure out a way to justify the non-disclosure of at least some of his financial entanglements with billionaire Harlan Crow? Consider Pro Publica’s latest revelation, that in 2014 Crow purchased three Savannah, Georgia, properties – a house and two vacant lots – from Thomas and his family members, for $133,363, which the justice did not include on his annual financial report.
According to Pro Publica, this “transaction is the first known instance of money flowing from Crow to the Supreme Court justice.” Thomas’s critics have been quick to condemn him for a “shady” deal, running “afoul of the law,” and entering territory “treacherous for the justice and the court on which he serves.”
But could there be an innocent explanation?
Thomas evidently had a one-third interest in the real estate, along with his mother and the family of his late brother. The holdings were included on his report for 2014 as “rental property” with a value of under $15,000, and no mention of the sale. He listed the properties again for 2015, although he no longer owned them, with no valuation and no reported transaction or proceeds, with a footnote stating there was “no rental income for this property,” presumably because the house was still occupied by his mother. The properties were no longer listed on Thomas’s 2016 annual report.
It is at least possible that Thomas disclaimed his share of the proceeds, apportioning the money instead between his mother and the other family members. That would have been in character for Thomas, who is known to be generous and supportive of his family. Such a disclaimer would have to be in writing, of course, but it would not necessarily have been referenced in the tax document and deed located by Pro Publica. If Thomas did indeed disclaim his share, there would have been no income for him to include in the “Investments” section of his disclosures.
Unfortunately for Thomas, there is more to the annual report. In 2014, Thomas valued his third of the properties at less than $15,000, meaning that the aggregate value would have been under $45,000. Crow, however, paid the sellers $133,363 in the same year, or just under triple the maximum estimated value. Even if the justice graciously redirected his share of the proceeds to family members, Crow’s payment in great excess of the market value would still have been reportable as a gift to Thomas — a section that he left blank on his reports for 2014 and 2016 (for 2015, he listed only a $6484.12 bronze bust of Frederick Douglass, given to him by Harlan Crow).
That was the best I could do. After forty years of studying judicial ethics, I could imagine a way to absolve Thomas from one omission, although it ended up implicating him in another. Even so, it was better than the excuses Thomas has come up with for himself.
Posted by Steve Lubet on April 17, 2023 at 07:47 AM
I’ve resumed work on my Youngstown book. One issue that I’m thinking through is a common misperception about what Jackson said in his concurrence.
The misperception goes something like this: Robert Jackson was an aggressive advocate for presidential power as FDR’s Attorney General and supported the executive seizure of private property in the interests of national security. But Justice Jackson switched his position and rejected President Truman’s seizure of the steel mills. In doing so, Jackson recognized that the law was different from his personal view, much as a judge does by affirming on stare decisis grounds a precedent with which she disagrees.
But this is not accurate. Jackson actually said that his views were consistent and that the FDR seizure was distinguishable from the Truman seizure. In other words, he did say that he changed his position. Why, then, do people think that he did? Part of the answer is that said that as a judge he was not bound by his prior statements as Attorney General and alluded at other points to the difference between serving as an executive advisor and as a judge. But he also made other points suggesting he would not have advised Truman to make the seizure if he had been Attorney General in 1952.
Perhaps this was just brilliant rhetoric. But the question I have is whether the perception that Jackson changed his view because of judicial robes is important to the authority of the opinion.
Posted by Gerard Magliocca on April 14, 2023 at 08:12 PM
My new column for The Hill provides a brief history of the Supreme Court’s refusal to adopt a code of conduct – spoiler: I was the first person to raise it, in 1990 – culminating in Justice Thomas’s flouting the gift disclosure requirements.
Here is the gist:
The Supreme Court Has No Code of Conduct: It’s Starting to Show
By Steven Lubet, Opinion Contributor – 04/13/23
The U.S. Supreme Court’s refusal to adopt a written code of ethics is a 50-year-old story that has recently gotten lots of fresh attention — for good reasons attributable to the justices’ own poor stewardship of their public trust. The revelation of Clarence Thomas’s undisclosed luxury gifts from Republican mega-donor Harlan Crow is only the latest chapter in his long history of disregard for ethical norms.
The story begins in 1972 when the American Bar Association published a Model Code of Judicial Conduct, intended to provide mandatory rules for judges’ behavior both on and off the bench. The Judicial Conference of the United States became one of the first bodies to formally adopt the Code of Judicial Conduct, in early 1973.
At first, nobody seemed to notice or remark upon the Supreme Court’s abstention from the movement toward judicial accountability. I was among the first even to point out the absence of a Supreme Court Code of Conduct, in a 1990 essay, ironically in a journal published by the Federalist Society, which drew about as much attention as most law review articles.
Promises of good faith and voluntary compliance only go so far, especially when certain justices have flouted the rules that apparently apply to everyone else.
Enter Clarence Thomas.
The furor eventually shook loose a response from Thomas, who implausibly explained, “Early in my tenure at the court, I sought guidance from my colleagues… . and was advised that this sort of personal hospitality . . . was not reportable.”
Thomas’s rationalization depends heavily on the meaning of “this sort.” Six of the eight other then-justices have passed away, but neither David Souter nor Anthony Kennedy has confirmed presciently counseling Thomas that decades of lavish travel in the company of political operatives — which he had not yet indulged — would be exempt from future disclosure.
You can read the full essay at The Hill
Posted by Steve Lubet on April 13, 2023 at 01:59 PM
The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022), which explores the racial inequality embedded in state court procedure.
Posted by Howard Wasserman on April 13, 2023 at 01:19 PM
The recent expulsions of state legislators in Tennessee provides an opportunity to think about the expulsion power more generally. To my mind, these rare acts fall into two categories: a remand and a symbol.
A remand is where a legislature in good faith thinks that a member’s conduct means that the voters would no longer want that person to represent them. An obvious example is a felony conviction. Since a recall is often not possible, expulsion may be the only way to cut short that member’s term. The expelled member is then free to seek reelection, and the legislature might be wrong in thinking that the voters no longer support that person. What is clear, though, at least since the Wilkes precedent from Britain in the 18th Century, is that a member that the voters do want will not be expelled a second time.
The symbol involves kicking people out knowing that they will never return or will definitely come back. For instance, there was no need to expel the southerners who left Congress to join the Confederacy, but there was some important symbolism in expelling them. Likewise, a legislature can expel someone to make a statement even though it’s clear that the person will be sent back. This seems to be the result in Tennessee for one of the expelled members. who is already back in office and did not miss a vote. Whether this symbolic expulsion makes sense depends on how you assess the validity of the legislative statement.
Both types of expulsions make more sense when a special election is quickly held to fill the vacancy. Consider a different example–the U.S. Senate. A Senator has not been expelled in ages, but if that happened now typically a governor would pick the replacement. Eventually there would be another election, but that could take years. Expulsion in that context, therefore, should be seen as especially problematic because the voters may get no say on the matter at all for a long time.
Posted by Gerard Magliocca on April 12, 2023 at 01:25 PM
