Aaron Caplan has posted this draft on SSRN (forthcoming, Journal of Legal Education). Here is the abstract;
Two books published in 2012 – Liberty’s Refuge: The Forgotten Freedom of Assembly by John D. Inazu and Reclaiming The Petition Clause by Ronald J. Krotoszynski, Jr. – are devoted to explaining the final clauses of the First Amendment. They share a central complaint: namely, that current doctrine fails to give much independent force to either clause, instead channeling all inquiries into a speech clause that does not effectuate the distinct goals of the assembly and petition clauses. Yet the two books have curiously little to say to each other. The cases the authors cite and the slices of legal and social history they explore have almost no overlap.
This joint review (forthcoming in the Journal of Legal Education) describes the two books, identifying some of the more intriguing puzzles identified by each. It closes with some ideas about what it means for two nearly simultaneous books about “forgotten” clauses of the First Amendment to pass silently like ships in the night.
The following press release arrived via email:
Decision Paves Way for Jury to Hear Claims That Democratic Party and Its Allies Unlawfully Targeted Nader-Camejo 2004 Independent Presidential Campaign in Concerted Nationwide Effort to Suppress Voter ChoiceMACHIAS, ME – Maine Superior Court Justice Kevin M. Cuddy ruled on September 20, 2012 that a lawsuit filed by consumer advocate and 2004 independent presidential candidate Ralph Nader and his Maine electors Christopher Droznick, Nancy Oden and Rosemary Whittaker against the Democratic Party and several of its allies must proceed to trial.Justice Cuddy’s decision follows a unanimous ruling by the Maine Supreme Judicial Court(the “Law Court”) in April, which reversed Justice Cuddy’s prior dismissal of the case pursuant to Maine’s anti-SLAPP statute, 14 M.R.S. §556. The anti-SLAPP statute allows defendants to dismiss a lawsuit if they can show the claims against them are based on constitutionally protected petitioning conduct. The Law Court’s April decision established a new standard for determining whether the anti-SLAPP statute applies.Under the new standard, Justice Cuddy ruled that the anti-SLAPP statute does not protect the defendants’ conduct in this case. “The Court is satisfied…that Plaintiffs have made a prima facie showing of both a civil conspiracy, including an ulterior motive, and the improper use of discovery and subpoenas to establish an abuse of process claim,” Justice Cuddy concluded.“Now that the initial procedural obstructions have finally been cleared, we are looking forward to having our day in court,” Nader said. “One goal of our campaign was to expose and challenge the stifling anti-democratic and anti-competitive barriers the two major parties erect against legitimate challengers in order to deny voters a free and broader choice of candidates,” Nader continued. “The evidence supporting our case is prodigious, and we look forward to proving our claims to a jury.”Originally filed in 2009, the lawsuit alleges tort claims under Maine law for civil conspiracy, abuse of process and malicious prosecution. The plaintiffs allege that Democrats orchestrated a concerted, nationwide effort to interfere with the campaign of Nader and his running mate, the late Peter Miguel Camejo, by filing 29 complaints in 19 states, including Maine, and that many of the complaints included groundless and demonstrably false allegations of fraud.According to defendant Toby Moffett, a Washington, D.C.-based lobbyist who helped recruit an estimated 95 lawyers from 53 law firms to join the effort, the purpose of the Democrats’ complaints was to “drain,” “distract” and “neutralize” the Nader-Camejo campaign, by “forcing [them] to spend money and resources defending these things.”In addition to Moffett, the lawsuit names as defendants the Maine Democratic Party, its former Chair Dorothy Melanson, the Democratic National Committee, its former Chair Terry McAuliffe, the Kerry-Edwards 2004 campaign and a Section 527 political organization Moffett headed called The Ballot Project.Justice Cuddy also rejected the defendants’ efforts to dismiss the case on jurisdictional grounds. “This Court will allow discovery to take place and make a determination as to jurisdiction over the defendants, corporate and individual, when the issue is raised again at trial,” Justice Cuddy ruled, but granted dismissal for The Ballot Project because its corporate charter had been revoked and it no longer exists.“Justice Cuddy’s decision and the Law Court’s decision before that are important steps on the road to more free and equal elections and robust democracy in the United States,” Nader said. “This case is about the right of the people – not private political parties and partisan, exclusionary elections officials – to decide who serves in public office.”“Former Governor Gary Johnson of the Libertarian Party and former Congressman Virgil Goode of the Constitution Party are now facing what the Nader-Camejo campaign confronted in 2004,” Nader added. “Both the Democratic and the Republican parties treat the electoral process and the voters as if they own them, and they will continue to do so until Americans of all political persuasions put a stop to it by demanding a broader choice of candidates on the ballot in each election cycle.”
The right to petition the White House (at least so long as you have a valid email address).
Lyle blogs on Borough of Duryea.