Category Archives: First Amendment theory

Political Conduct and the First Amendment

Now that I have finished a draft of a new Article, Political Conduct and the First Amendment, I am eager to join the conversation on the ELB. I couldn’t be more thankful to Rick for including me as part of the team. I am a devout reader of the blog and look forward to broadening the ongoing discussion in the election law community about how to improve both democratic governance and faith in democratic institutions.

In the meanwhile, like many of us, I have been wrestling with how to make sense of the Roberts Court’s indifference to voters and democracy. Political Conduct and the First Amendment is my take on the bigger picture:

Preview: The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Its provisions protect both speech and political conduct toward the end of securing vital channels for influencing public policymaking, demanding responsiveness, and ensuring accountability. Over time, however, the Supreme Court and scholars alike have gravitated to the speech clause, driven by the misconception that democracy is a product of political discussion, rather than political participation. The Court has thus reduced a multifaceted amendment protecting the political process writ large into a singular protection for free expression. The Article explains not only why this is a mistake, but how it negatively impacts our democracy. It proceeds to offer a more nuanced account of the First Amendment’s relationship to self-governance—one that vindicates a construction of the amendment that actually protects democracy in all its facets. The three main pillars of this new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.

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The Big Lie and January 6

The Washington Post has an overview of where things currently stand with the House’s select committee investigating the January 6 insurrection. The Post says this committee’s investigation is supposed to be the “ultimate arbiter” of what happened that day. Maybe, but I think the DOJ investigation and, where appropriate, prosecutions are an important dimension to establishing both truth and accountability for the wrongdoing.

In this regard, I wonder about the applicability of a particular federal statute, 18 U.S.C. 371, to the Big Lie and what it led to on January 6. This is the statute that criminalizes fraud against the United States and which the Mueller probe used against Russian disinformation aiming to subvert America’s electoral processes. This type of use received federal-court approval, at least in principle, in U.S. v. Concord Management, 347 F.Supp.3d 38 (D.D.C. 2018).

Ordinarily, I’m very wary of efforts to criminalize political speech, but intentional dishonesty designed to subvert the official procedures of electoral democracy might be a justifiable exception. The goal of the Big Lie was, and continues to be, to prevent the United States and its government to get the benefit of the 2020 election according to its honest results. In particular, the “stop the steal” component of the Big Lie, seeking to disrupt the lawful process of the January 6 joint session of Congress, could be seen as intentional dishonesty aiming to defraud the United States of the proper functioning of the Electoral College procedures of the Twelfth Amendment and the Electoral Count Act.

The fact that Trump and his allies continue to perpetuate the Big Lie, including at his recent Arizona rally, weighs in my analysis of this issue. Insofar as the goal of the Big Lie, now six months after Biden’s inauguration, is to undermine the legitimacy of the Biden Administration in the minds of many Americans, and to make the functioning of government more difficult, one could argue that if the perpetrators of the Big Lie are being intentionally dishonest (knowing what they say to be untrue), then they are attempting to defraud the United States of the proper functioning of its lawful government.

There should be consequences forthe kind of Big Lie mendacity that Trump and his allies are inflicting on America. One reasonable question to pursue, it seems to me, is whether 18 U.S.C. 371 is an appropriate vehicle for the accountability that needs to occur. (Remember, in this context, that even if the bar to prosecuting political speech under the statute is extraordinarily high, the facts here still might warrant it. Trump has been been incessantly repeating the Big Lie despite knowing that his own Attorney General, Bill Barr, called it “bulls___.” This surely put Trump on notice of the falsity of the lies he was disseminating, and would seem to make his speech beyond the protection of the First Amendment according to the “reckless disregard of the truth” standard in the Court’s cases, including New York Times v. Sullivan and Garrison v. Louisiana. Also, the Alvarez “stolen valor” case distinguished fraud statutes from the scope of its holding and therefore offers no protection for potential prosecution of knowing or reckless dishonesty under a fraud statute, like 18 U.S.C. 371.)

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“The Supreme Court’s Increasingly Dim View of the News Media”

Adam Liptak for the NYT:

No other member of the Supreme Court joined Justice Thomas’s opinion urging it to revisit the foundational 1964 libel decision, and Judge Silberman’s dissent was widely criticized. J. Michael Luttig, a former federal appeals court judge who was on President George W. Bush’s short list of potential Supreme Court nominees, called the dissent shocking and dangerous in an opinion essay in The Washington Post last month.

But the negative views from the bench of the news media may not be outliers. A new study, to be published in The North Carolina Law Review, documents a broader trend at the Supreme Court. The study tracked every reference to the news media in the justices’ opinions since 1784 and found “a marked and previously undocumented uptick in negative depictions of the press by the U.S. Supreme Court.”

The study was not limited to cases concerning First Amendment rights. It took account of “all references to the press in its journalistic role, to the performance of commonly understood press functions or to the right of press freedom.” Many of these references were in passing comments in decisions on matters as varied as antitrust or criminal law.

“A generation ago, the court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation and an institution with specific constitutional freedoms,” wrote the study’s authors, RonNell Andersen Jones, a law professor at the University of Utah, and Sonja R. West, a law professor at the University of Georgia. “Today, in contrast, it almost never speaks of the press, press freedom or press functions, and when it does, it is in an overwhelmingly less positive manner.”

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