Posts Tagged ‘First Amendment’

Citizens United Watch: Justice Thomas’s Wife Forms Conservative Lobbying Group Which Will Take Corporate Funds

The Los Angeles Times reports that Virginia Thomas, wife of United States Supreme court Justice Clarence Thomas, has formed a new lobbying group called Liberty Central Inc., which will accept donations from corporations, as permitted under the new corporate speech regime announced in Citizens United v. FEC. (For background, read our earlier post, “Citizens United: Eight Unanswered Questions.”)

The Times speaks to a number of legal ethics experts, who agree that there’s no precedent for addressing potential ethical conflicts raised by a Supreme Court justice with a lobbyist spouse. They note, however, that Thomas’s affiliation with the group might require Justice Thomas to recuse himself from certain cases in the future.

One fact stands out in particular to this reader: the Times says the organization was launched in January 2010, and Ms. Thomas’s bio on the Liberty Central website refers to her as a “new social entrepreneur.” The Citizens United opinion came down on January 21st, 2010. Thus, Liberty Central was either founded immediately before Justice Thomas’s vote in the Citizens United case, or immediately after.

The proximity of Liberty Central’s founding to the release of the Citizens United decision raises a number of questions. Was Liberty Central in the works regardless of the Court’s decision? Did it merely state an intent to receive corporate funds as an afterthought, or does it expect to receive a significant portion of its funds from corporations? Was Virginia Thomas simply well-aware of what many observers suspected — that the Court would remove many restraints on corporate speech — allowing her to begin planning in advance of the Court’s ruling, or was she privy to particular information about the Court’s progress in its deliberations? At which point did she indicate to her husband her intent to find new employment with an organization which would benefit from the Court’s ruling?

The real story here may simply be that studying the means by which Liberty Central intends to operate will allow observers to better predict the practical effects of the Citizens United decision. appears to be a social networking site, with an approach similar to, providing an organizing platform for “new citizen activists,” by which they apparently mean grassroots conservative activists of the Tea Party ilk (the site contains an endorsement from an organization called the Tea Party Patriots). Its website states that Liberty Central will provide access to “directories of funding sources, tools and vendors for conservative activists.” Thus, Liberty Central itself may reap revenue from connecting grassroots activists with corporate funds — a process better known as astroturfing. Will Citizens United provide the wherewithal for an astroturfing explosion in the 2010 Congressional races?


Law Students Win Downloading Victory; Corporations Contemplate Political Speech; Gaga Trademarks Self

Students from Franklin Pierce Law Center’s clinics are declaring victory for their client in a music downloading suit against the Recording Industry Association of America (RIAA). Students from the Consumer and Commercial Law and Intellectual Property and Transaction Clinics aided a New Hampshire woman, Mavis Roy, in reopening a default judgment lodged against her for allegedly illegally downloading hundreds of songs. The case was then set for trial and the students spent months preparing. After Roy’s counsel obtained an expert report which “seriously challenged RIAA’s evidence linking the downloading activity to Roy’s computer,” the two sides reached a settlement highly favorable to Roy — the suit was dismissed with prejudice and she paid no damages. Thanks to @piercelaw for the tip.

As you might expect, law firms are already advising corporate clients about how to direct corporate spending to political campaigns in the wake of Citizens United v. FEC. According to K & L Gates, they should proceed with caution and keep a low profile. For more information on Citizens United, see our earlier post, “Citizens United v. FEC: Eight Unanswered Questions.”

Gawker reports that Lady Gaga has applied for a trademark in her name for use in conjunction with an extremely wide range of products, including gift cards, tank tops, and pens. The application is here.


Legislators Attempt to Bar Foreign Law from Arizona Courts

Eugene Volokh reports on a bewildering new bill making its way through the Arizona state legislature which would ban the application of foreign or “religious sectarian law” in Arizona courts.

To wit:

A. A court shall not use, implement, refer to or incorporate [any] tenet of any body of religious sectarian law into any decision, finding or opinion as controlling or influential authority.

B. A court shall not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the United States and its territories in any decision, finding or opinion as either:

1. Controlling or influential authority.

2. Precedent or the foundation for any legal theory.

C. Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is null and void, is appealable error and is grounds for impeachment and removal from office.

D. This section applies to a federal court sitting in diversity jurisdiction. . . .

Justice Anthony Kennedy of the United States Supreme Court has received significant media attention in the past decade for citing foreign law in Supreme Court cases. Apparently some Arizona legislators are concerned that this practice, which has been running rampant in the Supreme Court since the 19th century, will infect the otherwise pristine Arizona state court system. Accordingly, they’re taking steps to outlaw it.

Setting aside “religious sectarian law” entirely, this bill’s bar on the application of foreign law is misguided for the following reasons.

The bill misunderstands its own subject matter.

The bill bars the use of foreign law as “controlling or influential authority” or “precedent or foundation for any legal theory.” Generally we discuss authority in terms of “mandatory authority” and “persuasive authority,” and it seems likely that here, “controlling” means “mandatory” and “influential” means “persuasive.”

For our non-lawyer friends, “mandatory authority” means a judge is bound to follow certain legal precedent. For instance, rulings of the Arizona Supreme Court are mandatory authority — lower state court judges are bound to follow them. “Persuasive authority” means that a judge, finding no mandatory authority on a particular point, cites another judge’s approach to the same legal problem as persuasive. Citing to persuasive authority has the effect of saying, “We haven’t decided how we address this problem yet in Arizona, but here’s how they address it in [California, or New York, or Great Britain], and we should consider addressing it in the same way.”

At the risk of circularity, foreign law generally isn’t applied as mandatory authority in the United States because it’s foreign law. It doesn’t apply here. In some circumstances, however, foreign law is relevant and must be interpreted; for instance, when a contract which is the subject matter of a dispute between an American company and, say, a Canadian company states that the contract must be performed according to Canadian law. American courts would have to look at Canadian law in such circumstances to determine if the contract had been breached. If every Arizona contract case involving Canadian law was forced out of Arizona courts and into the Canadian judicial system, some number of American companies would pay a significant price in convenience and expense.

United States courts will occasionally look to foreign law as persuasive authority. In those circumstances, the judge is not “following” foreign law or “applying” it. The judge is merely stating that its reasoning is persuasive. In other words, foreign law cannot be seen as governing the judge’s decision. The thought process behind the foreign law is merely informing the domestic decision. Binding precedent can only be created if a number of other courts in the same legal system follow this initial decision, in which case other judges are confirming that they think the developing precedent is sound. Under the new Arizona law, the underlying line of cases in this situation would stem from a “foundation” of foreign law, despite the fact that the judges would be coming to their own conclusions and developing an independent basis for their decisions, and would thus be invalid despite the application of individual judgment.

Finally, this law’s stated purpose is to prevent the misapplication of legal authority. There is already a remedy for the misapplication of legal authority, whether mandatory or persuasive — appeal. In fact, appeal is asserted as one of the remedies in the bill. Parties have always been able to petition for review of decisions rooted in inappropriate reasoning. This law seems to contemplate a conspiracy among every judge in Arizona to infect the common law with foreign legal principles, or some other situation in which the court system couldn’t be trusted to identify its own mistakes.

Portions of the bill are probably unconstitutional.

While it purports to restrict the ideas judges are permitted to espouse, and thereby restricts speech, the bill is probably not unconstitutional under current First Amendment jurisprudence. The United States Supreme Court ruled in Garcetti v. Ceballos that statements made by public employees pursuant to their official duties are not protected by the First Amendment. Judicial opinions are certainly statements made in the course of public employees’ official duties.

However, the bill is probably unconstitutional, at least as it applies to federal judges, because it violates principles of federalism. It purports to dictate the conduct of federal judges, who are vested with authority under the Constitution and over whom state governments have no authority. When federal judges sit in diversity jurisdiction, they apply the substantive law of Arizona. Now the substantive law of Arizona says that federal judges can’t consult foreign law as part of applying the substantive law of Arizona, even if such law intersects with the substantive law of Arizona. However, while federal judges must interpret Arizona law in such instances, states can’t tell federal judges specifically how to interpret the law, because it’s the job of the federal judiciary to “say what the law is,” and that seems to be exactly what the state legislature is doing in limiting the means by which federal courts can address the cases before them.

Finally, a sufficiently determined judge will find ways to introduce ideas he or she finds persuasive.

Although it is no longer as popular as it once was to be a vulgar legal realist, I fear I still may be one. In simplest terms, I mean that I believe that within the bounds of professionalism, judges often reach conclusions first and then reach back into the law to find support for those conclusions. An appeal to foreign law, then, may be just another means of supporting a position a judge has already reached.

Here, if judges find the insights of foreign legal authorities useful but cannot use them directly, I predict that they will not simply throw their hands up and abandon those insights. I am sure they will find other ways or working those insights into their own work. Who would know any better, and who is going to go to the trouble of investigating the provenance of every supposedly original idea in a judicial opinion?


Issue Spotter!

This post is for all of the law students and recent law graduates out there. I came across the following paragraph in a Daily Beast article entitled “The Hipster Thief,” about literary enfant terrible and fellow NYU grad Tao Lin, author of Shoplifting From American Apparel, and the legal fallout from his arrest for, well, shoplifting from American Apparel:

After agreeing to publish a chapbook called today the sky is blue and white with bright blue spots and small pale moon and i will destroy our relationship todaywith respected indie publisher Kevin Sampsell, Tao chafed so much at Sampsell’s editing suggestions that Sampsell canceled the book. Then, in a long, hypnotic blog post, Tao published all of Sampsell’s personal emails along with a detailed “philosophical justification” for doing so. (He claimed that making private information public “decreases pain and suffering in the world.”) Later, after his shoplifting arrest, Tao emailed lawyer and short-story writer Richard Grayson for legal advice. Grayson then published those emails on without Tao’s permission as a book called The Tao Shoplifting Crisis.

This paragraph is right out of a law school issue spotter essay exam. How many legal issues can you spot? I see at least five:

DISCLAIMER: I’m not saying any of these wrongs were actually committed by any party or that such claims would stand up if brought, just that the issues are there, and that after reading that paragraph I had to keep myself from launching Electronic BlueBook on my laptop.

Did I miss any other potential claims against any party? If they’d only included a few more facts about Lin’s arrest, we’d have criminal law and criminal procedure issues too!

Some samples of Tao Lin’s work are available here.

Adult Swim fans might also enjoy “Issue Spotting Metalocalypse” over at the Legal Satyricon.


Citizens United v. FEC: Eight Unanswered Questions

The country is abuzz about the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, soon to be known as “the case that launched a thousand law review articles.” The implications of Citizens United are enormous, and commentators are bitterly divided. Did the Supreme Court untangle a vexatious doctrinal knot and strike a necessary blow for the First Amendment, or did the Court remove the last significant barrier between corporate monetary influence and the political process?

(For cheers, visit the Volokh Conspiracy; for jeers, visit the Huffington Post; for a sampling of positive and negative opinions, visit the New York Times; for useful analysis of underlying issues, visit SCOTUSblog here and here.)

While I can’t answer the many questions the opinion raises, I have outlined some questions of my own, and I am eager to hear other people’s opinions and predictions regarding these issues. (I note that moneyed interests, particularly PACs and wealthy individuals, already exert significant influence on the political process. The following questions are predicated on the assumption that Citizens United will result in a significant increase in the volume of spending on political advertising, and that such spending by corporations will be subject to less regulation than spending by PACs.)

Question One. Justice Kennedy certainly puts a lot of faith in the accuracy of corporate political speech. He takes for granted in his hypotheticals (“[t]he Sierra Club runs an ad . . . that exhorts the public to disapprove of a Congressman who favors logging in national forests”) that the corporations in question are basing their opinions on proven facts. Kennedy’s opinion states that the burden of regulation chills speech in advance of an election and that corporations should be able in essence to speak first and worry later about whether their speech accords with a given regulatory scheme. But what about situations where corporations spread half-truths or even outright falsehoods about candidates? Will candidates be able to get to court in time to stop the corporations before a given election? The law of defamation is not on the side of candidates in such a situation, and neither is the clock. Political candidates are considered “public figures,” and, as such, they must plead and prove additional facts to win a defamation suit: knowledge of the statement’s falsehood and/or knowing disregard for the truth, also known as “actual malice.” This is, of course, a difficult standard to meet. Will an aggrieved candidate be able to do so before such a corporate-sponsored falsehood undermines an entire campaign? Will courts do anything to make it easier, at least procedurally, for candidates to obtain injunctive relief quickly?

Question Two. In Section 3 of the opinion, Justice Kennedy dismisses the issue of whether the government has an interest in protecting dissenting shareholders from being compelled to fund corporate political speech, stating, “[a]ssume . . . that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. . . . Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech.” Kennedy’s hypothetical, however, focuses on a publicly held media corporation, despite the fact that both law and tradition have treated the political speech of media corporations differently from that of non-media corporations. Wouldn’t a shareholder in a media corporation, before purchasing his or her shares, understand that expressing political opinion, through an editorial board or similar means, is part of the traditional business of that corporation in a way that it isn’t for, say, a plastics company?

Question Three. Kennedy proceeds, “[t]here is, furthermore, little evidence of abuse that cannot be corrected by shareholders ‘through the procedures of corporate democracy.’” He further states that “[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” Despite Kennedy’s faith in the power of the Internet, will it really be possible for shareholders to express disagreement with corporate political speech through corporate democratic measures quickly enough to protect their own interests, especially if the mere production of the ad exposes the corporation to suit or harms its reputation?

Question Four. Further, if shareholders can’t quickly make their views known through traditional measures of corporate democracy, won’t they find new ways to voice their disagreement? For example: if a corporate-sponsored political ad leads to a defamation lawsuit against the corporation, will that suit lead to an accompanying shareholder derivative suit against the corporate directors who approved the advertisement that exposed the corporation to liability? What if an advertising campaign is factually accurate but takes a wildly unpopular stance that ultimately hurts the corporation’s bottom line?

Read the rest of this entry »