“Back into the FIRE: Hasen’s response to FIRE and Rohde: Don’t read the press clause out of the Constitution — First Amendment News 420”

First Amendment theory

I have written this reply, as Ron Collins explains:

It all started when I noticed an SSRN post of a forthcoming essay by Richard Hasen. In it, the UCLA School of Law professor took exception to some of what was offered up by FIRE in an amicus brief filed in the Ninth Circuit in TGP Communications v. Sellers. FIRE and Stephen Rohde thereafter weighed in with their responses to Hasen. 

Now, professor Hasen returns to the analytical scene with his rejoinder, which is set out below. 

A few snippets:

Neither FIRE nor Rohde address the problem, “How do you identify journalists when there is finite space or some other scarcity and decide whether to give special treatment like a media shield?” or most of my proposed solutions — such as limiting press protections to professional journalists rather than dabblers, and making the definition of “press” turn on the regularity of engaging in journalistic activities rather than on the type of technology (like a political blog) through which reporting is conveyed.

It may be that FIRE and Rohde believe all the rules that identify professional journalists, including the rules for United States Supreme Court press access that I detail in my chapter, violate the First Amendment. If so, such a ruling would not only eviscerate protection for the press contained in the First Amendment. It would also create Bedlam. Are we going to kick out reporters from The New York Times and Fox News from the White House briefing room and replace them with non-professionals who just have a personal interest in being there? Will this be done by lottery? This system would do a great disservice to the nation and to the ability of the press to serve its educational function — and to serve as a meaningful check on the government.

Are we to give everyone a press shield, essentially ending the pursuit of truth in courts? Or are we to eliminate press protections for professional journalists? Neither FIRE nor Rohde say.

Instead, they focus on only one aspect of my proposal — something which has historically not been a problem, but in the cheap speech era is increasingly becoming one: how to handle people who are professionals in the sense that they write content for websites, but they do not follow journalistic norms. Instead, they are vectors for spreading disinformation, including disinformation about elections being stolen that undermines voter confidence in the democratic process….

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“Federal appeals court upholds order barring county-line ballots” [updated]

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New Jersey Monitor reports. Also the New Jersey Globe. And NorthJersey.com

(If I have any comments on the opinion that I think worth blogging, I will update this post accordingly.)

UPDATE: Having read the opinion, I think the cases raises important and difficult issues that require further thought and implicate complicated–and not necessarily consistent–areas of Supreme Court doctrine. What struck me most about the case is that it concerns a primary rather than general election, and therefore arguably the political party itself has First Amendment interests that are significantly stronger than would be the case if the discriminatory treatment among candidates concerning placement on the ballot was in the context of a general election. For example, the court’s opinion acknowledges that if the party itself were to endorse one of the candidates in the primary–in effect, telling the primary voters that they ought to cast their ballots for one of the primary candidates rather than any of the others–that would be constitutionally permissible. On page 30 of the opinion, the court states: “Nothing in the preliminary injunction prohibits the CCDC from including county parties’ slogans on the ballot, endorsing candidates, communicating those endorsements, or
associating by any other constitutional means.” But if the party can communicate favoritism for one of its candidates directly on the ballot in its own primary election, I find it hard to understand why the party can’t elevate its favored candidate to a preferred position on the primary ballot. What’s the constitutional principle indicating where the constitutional line is being drawn in this context?

More broadly, there is the vexing question of what electoral matters the government gets to control, in contrast to what matters the party as a matter of First Amendment right gets to control. It would be a lot simpler if the government got to control everything with respect to a government-run election, but the government never administered the party’s own process for choosing the party’s nominee. In other words, if the only type of government-run primary elections were the kind of all-candidates nonpartisan primaries operated by California and Alaska in the context of their “top-2” and “top-4” systems, respectively, then parties would have no First Amendment associational rights to assert in that context, because those primary elections wouldn’t be about choosing a party’s nominee. In that system, the parties could choose whether or not to nominate or endorse a candidate in its own internal proceedings separate from the government-run elections.

But what happens when the government volunteers to pay for and run a primary election for the purpose of nominating the party’s chosen nominee? Does the government get to control the process entirely then? Not according to California Democratic Party v. Jones. If the government chooses to assist the party in its procedures for selecting its nominee, the government must accept that the party is entitled to make fundamental decisions concerning those procedures–like who gets to participate. But what if the party wants its nomination process to be weighed in favor of the candidate endorsed by the party’s governing officials? Can the party insist upon that as a matter of First Amendment right, or can the state override the party’s chosen procedures for how to govern itself and its nomination process?

This area of election law is, frankly, something of an intellectually incoherent mess, and this new opinion unfortunately does not help insofar as it applies Anderson-Burdick balancing as if there isn’t a fundamental distinction between primary and general elections for purposes of constitutional analysis. There is probably much more that can and should be said on this topic, but that’s enough for now.

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Dunwody Distinguished Lecture in Law

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On Friday (April 19), Rick Pildes is delivering the Dunwody Lecture, sponsored by the Florida Law Review. His topic is “Combatting Political Extremism,” something I’ve been very fortunate to work with him (among others) on over the last few years. (Along with Larry Diamond, he and I are in the process of editing a volume of papers that grows out of a task force devoted to this topic that emerged in the aftermath of the January 6 attack on the Capitol; and he and I had a hand in drafting a couple of those papers.) I’m also fortunate to be participating in the Law Review’s symposium that accompanies–and precedes on Thursday (April 18)–Rick’s lecture. (Participant bios are here.) For those unable to attention in person, there’s a link to register for the zoom presentation. It should be a great set of discussions.

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“Constitutional amendments will come, but only after this”

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Rick LaRue in the Fulcrum. This piece echoes the one earlier this year by Larry Schwartztol and Justin Florence in The Atlantic: “Amending the Constitution Is Impossible Until Suddenly It’s Not.” It is also possible that the threat of a constitutional convention could spur the adoption of specific amendments, as it did with the Seventeenth Amendment’s adoption of direct election of U.S. senators. But Alex Keyssar’s important book Why Do We Still Have the Electoral College? is an important cautionary tale concerning the immense difficulty of electoral reform by means of constitutional amendment, even when America’s voters overwhelmingly want the reform in question.

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