Eugene Volokh's Blog, page 2640

Why North Koreans Cried for Kim Jong Il

(Ilya Somin)

A couple weeks ago, I criticized a CNN article that stated that North Koreans "revere" recently deceased communist dictator Kim Jong Il, without noting that those who fail to show officially mandated reverence for the "Dear Leader" are likely to face severe sanctions from the government.

To its credit, CNN went on to publish a piece by John Sifton of Human Rights Watch's Asia division that takes a more realistic view of the reasons why North Koreans express support for their brutal government:

Since Kim Jong Il's death was announced...., many people have marveled at the mourning scenes featured on North Korean state television, made viral on the Internet: North Koreans prostrate, weeping, hitting the ground. Many have asked whether the anguish is genuine. How could citizens mourn the passing of a totalitarian, such a gross abuser of human rights?

The answer may be found in the human rights abuses themselves.

It is a lamentable characteristic of totalitarian regimes that they often demand acts of deceit from those they oppress. Often it is a matter of simple survival. Those who hate the regime are obliged to demonstrate patriotism. To fail is to risk persecution. The only alternative is to flee, a choice made by tens of thousands of North Koreans in the past two decades.

North Korea is unambiguously a totalitarian state. An estimated 200,000 North Koreans are held under brutal conditions in remote forced labor camps called kwan-li-so. Citizens are deprived of the freedom to speak, to dissent, to assemble, to seek remedies for grievances. Perhaps worst of all, there is no freedom from fear — knowing that one can be imprisoned and tortured for minor trifles, sent to a kwan-li-so for being related to someone who displeased the state, or face a kangaroo court trial and possible public execution for a long list of political or economic "crimes."

The great Czech dissident Vaclav Havel, who died on the same day as Kim Jong Il, wrote about the phenomenon of coerced expressions of public support for totalitarian regimes in his classic book The Power of the Powerless. Enforced conformity is even more draconian in North Korea than it was in the USSR and Eastern Europe.

As I noted in my previous post on this issue, the fact that many North Koreans expressed support for Kim Jong Il out of fear does not prove that he didn't have any genuine supporters. Some people really do love Big Brother, especially after decades of indoctrination. However, expressions of popular support for totalitarian rulers should not be taken at face value.

Berkeley's Malcolm Feeley Reviews Rehabilitating Lochner

(David Bernstein)

Berkeley Law School professor Malcolm M. Feeley has a brief review of Rehabilitating Lochner in the January issue of Choice, which publishes reviews for its primary audience of academic librarians. The review is behind a paywall, but it concludes, "This is a delightful and informative book that deserves a broad audience of scholars and laypeople alike."

Rick Santorum, Big Government Conservative

(David Bernstein)

An old but very relevant commentary by Jonathan Rauch:

In his book he comments, seemingly with a shrug, "Some will reject what I have to say as a kind of 'Big Government' conservatism." They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, "individual development accounts," publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in "every school in America" (his italics), and more. Lots more.

Via David Boaz, who points out Santorum's explicit rejection of "the whole idea of personal autonomy" and the "idea that people should be left alone."

The Framers and the Difference Between Freedom of Speech and Freedom of the Press

(Eugene Volokh)

A common argument against the claim that "the freedom of the press" protects all who use mass communications technology — and thus in favor of the claim that "the freedom of the press" specially protects the institutional media — is that otherwise the "freedom of the press" would be redundant of the "freedom of speech." After all, the argument goes, the Court has long treated printed communication as "speech"; given this, the only way to give independent meaning to the "freedom of the press" is to view it as extending independent protection to the press-as-industry.

I don't think that's right, for reasons I talk about in Part I.E of my Penn article on the subject:

The freedom of the press-as-technology, of course, was not seen [during the Framing era] as redundant of the freedom of speech. St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press as focusing on the printed:

The best speech cannot be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press.

Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that "freedom of speech means, in the construction of the Constitution, the privilege of speaking any thing without control" and "the words freedom of the press, which form a part of the same sentence, mean the privilege of printing any thing without control." Massachusetts Attorney General James Sullivan (1801) similarly treated "the freedom of speech" as referring to "utter[ing], in words spoken," and "the freedom of the press" as referring to "print[ing] and publish[ing]."

And these sources captured an understanding that was broadly expressed during the surrounding decades. Bishop Thomas Hayter, writing in 1754, described the "Liberty of the Press" as applying the traditionally recognized "Use and Liberty of Speech" to "Printing," an activity that Hayter described as "only a more extensive and improved Kind of Speech." Hayter's work was known and quoted in Revolutionary-era America.

Similarly, William Bollan (1766) described "printing" as "a species of writing invented for the more expeditious multiplication of copies," and asserted that "freedom or restraint of speech and writing upon public affairs have generally been concomitant"; because of this, Bollan argued, "restraints of writing" were likely to erode the "liberty of speech" and not only of writing, and "those who desire to preserve the [liberty of speech] ought by all means to take due care of the [freedom of writing]." And Bollan used "liberty of the press" and "the freedom of writing" (in a context suggesting printing) interchangeably.

Later, Francis Holt (1812) defined the liberty of the press as "the personal liberty of the writer to express his thoughts in the more [im]proved way invented by human ingenuity in the form of the press." William Rawle (1825) likewise characterized "[t]he press" as "a vehicle of the freedom of speech," adding that "[t]he art of printing illuminates the world, by a rapid dissemination of what would otherwise be slowly communicated and partially understood."

Without the freedom of the press, the freedom of speech might not have been viewed as covering printing, given that printing posed dangers that ordinary "speech" did not. Indeed, in the centuries before the Framing, governments tried to specifically constrain the use of the press-as-technology because they found it to be especially dangerous. The free press guarantees made clear that this potentially dangerous technology was protected alongside direct in-person communications.Of course, over the last several decades, the phrase "freedom of speech" has often been used to mean "freedom of expression" and to encompass all means of communication. This might have stemmed partly from technological change. New media of communication such as radio, films, television, and the Internet may fit more naturally in lay English within the term "speech" rather than "press." And once some mass communication technologies are labeled "speech," it becomes easier to label their traditional print equivalent "speech" as well.

The broadening of the phrase "freedom of speech" might also have been aided by the success of the "freedom of the press" clause in assuring protection for the press-as-technology. Once constitutional law applies the same legal rules to spoken and printed communication, with no extra constraint on the press, it becomes easier to use a common label to refer to the common protection.

But the canon against interpreting legal writings in a way that makes one clause redundant of another rests on the notion that the authors and ratifiers of those writings wouldn't have written something that was redundant under their understanding. And under the late 1700s understanding, the freedom of the press-as-technology was not at all redundant of the freedom of speech.

The Original and Traditional Meaning of "Freedom ... of the Press"

(Eugene Volokh)

My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:

"[T]he freedom ... of the press" specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist's privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the "freedom ... of the press" does not protect the press-as-industry, but rather protects everyone's use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words "the press" in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the "history" referred to by the Citizens United dissent shed on the "text" and the Framers' "purpose"?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of "every freeman," "every man," or "every citizen." This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.

Part IV turns to how the "freedom ... of the press" was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the "freedom ... of the press" secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.

Part VI then looks at how the Supreme Court has understood "freedom ... of the press" since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.

Part VII turns to how the "freedom ... of the press" has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the "freedom ... of the press." The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.

Finally, the Conclusion briefly discusses what effect this analysis should have on the Court's interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court's sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.

If you're interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer's privilege, or other topics, have a look at the article.

The Classic Contracts Cases in Words and Song

(Randy Barnett)

Stanford contracts professor Richard Craswell conceived, wrote and performed these amazing songs about six of the most famous and memorable cases in contract law. I laughed out loud at the first one, but they all are simply brilliant. If, that is, you took first year Contracts.

UPDATE: By the time I had listened to all these songs and cut and pasted all the links into a blog post, I see that Eugene already blogged about these. But having the videos embedded might be more convenient for some, so I will leave it up.

Contract Law Songs

(Eugene Volokh)

Lovers of contract law should much enjoy (as I did) Stanford Prof. Dick Craswell's suite of Contracts Songs, including on Frigaliment Importing, Lumley v. Wagner, Wood v. Lucy, Lady Duff-Gordon, and more.

New Jersey Court Holds Divorcing Husband Can't Be Ordered to Give Wife a Jewish Religious Divorce

(Eugene Volokh)

Under Jewish law, at least as understood by many Jews, a civil divorce decree isn't enough to terminate the marriage from a religious standpoint — unless the husband gives the wife a bill of divorce, called a Get (pronounced just like the word "get"), she may not remarry. If she civilly remarries before receiving a Get, her sexual relations with her new husband are seen as adulterous, notwithstanding her civil divorce; also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Jewish community. A recalcitrant wife may cause somewhat similar problems for the divorcing husband if she refuses to accept the Get.

Of course, all these impairments are purely a matter of Jewish law; American secular law does not at all enforce them. Nonetheless, they are taken seriously by many observant Jews, and women who have been refused Gittin (that's the plural of "Get")and the smaller group of men whose ex-wives have refused to accept Gittin are put in a difficult position. The ability to impose this position can also give a spouse substantial leverage to try to negotiate a more favorable settlement as a condition of giving (or receiving) the Get.

This had led some courts to order divorcing husbands to give Gets, and some legislatures to enact statutes providing for such orders. Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).

My sense, though, is that such Get laws or Get orders generally violate the Establishment Clause, because they impermissibly coerce the performance of a religious act. (See Lee v. Weisman (1992), where all the Justices agreed that coercing a religious act violates the Establishment Clause.) It's true that the religious act has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law. (The argument about shunning is subtly different from the others, but they're related, and the others all focus on the principle that the Establishment Clause bars the government from coercing the performance of a religious act.)

I was thus glad to see the most recent entry in the debate, Lowy v. Lowy (N.J. Super. Ct. App. Div. Dec. 21, 2011), which holds that orders that a husband give a Get are unconstitutional, unless the husband has contractually agreed to give the Get (or to abide by the outcome of a religious arbitration, which ends up ordering him to give a Get):

The parties were divorced on September 20, 2004 when the Family Part issued a dual final judgment of divorce, which, by agreement of the parties, incorporated the August 4, 2004 decision of a Bais Din (rabbinical court) located in Monsey, New York.... [But] the August 2004 decision of the Bais Din ... did not ... require defendant to provide his ex-wife with a Jewish divorce ... [and t]he judge's reliance here on the purported decision of the Bais Din was [therefore] flawed ....

Once the Bais Din decree is eliminated as a source of authority for the judge's August 27, 2010 enforcement order — as it must be — the order cannot be sustained because it constitutes impermissible judicial involvement in a matter of religious practice. Simply stated, the judge lacked the authority to compel defendant to "give the Get" where, under the facts presented here, defendant was not bound by any contractual agreement to do so.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Even Worse Than We Had Hoped: Inside Local TV News

(John Elwood)

Note: This is the second of two book "reviews" I've been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  "First Thing We Do, Let's Deregulate All the Lawyers" was the first, but Jonathan kinda beat me to that.  This is the second.

=====================

We're all lawyers here, right?

If you've ever regretted your career choice, I have the antidote:  Paul B. Spelman's "Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News," the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman's lack of killer instinct in investigating the story of her ski accident, Spelman's first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading "Let Jesus Fix Your Achy Breaky Heart." Spelman is "something of a curiosity" to the townsfolk as a "half-Jewish New Yorker whose only religious experiences came from attending classmates' bar mitzvahs." (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been "B'nai Mitzvah.") There, Spelman gains experience operating a one-man news "bureau," or "one-man band" in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the book's title comes from a statement a local anchor supposedly made to the reporter covering a story about how an accident had been worse (and thus more newsworthy) than expected.

One sample grab comes describes how Spelman, by then working in East Tennessee, was dispatched to get footage of the farm of a former judge who had been arrested for growing marijuana there. By this point, Spelman had achieved the seniority necessary to warrant having an actual cameraman, Dan, accompany him to cover his stories. Because of delays in finding the farm, the judge had posted bond by the time they got to the scene, and Spelman's admirable efforts to explain his rights to collect footage from a public roadway came to naught when the judge pulled a rifle case from his truck. Recognizing that the judge had the better of the argument,

We drove off, but unfortunately, we drove in the wrong direction, heading farther down a windy back road that didn't seem to lead anywhere. So with a sinking feeling, we realized we'd have to turn around and head back to the farm. We decided that if we were going to get shot, we should try to get it on video, so I drove and Dan got in the back seat with the camera. I generously allowed that if the guy started shooting Dan was permitted to duck. "But keep rolling," I said, "if we survive it'll be good footage."

When a highlight of your career is deciding how to caption your response to a sur-reply brief, that is infotainment. Spelman's book is filled with this kind of gentle, self-deprecating humor, the observations of a person who in many ways is a visitor in his own country. Spelman spares no details, even (or especially) when it is embarrassing; his account of one evening when he spent so long in a courthouse bathroom that he arrived late to cover an aviation mishap ends with the memorable phrase, "luckily for me, it's unwieldy to remove plane wreckage." (His account of how he got the story anyway, maybe better than his speedier competition did, is illuminating.)

Admittedly, I grew up in Peoria, Illinois. My standards for a good time may not be the same as for some of you swells who grew up where "entertainment" consisted of something more sophisticated than listening to AM radio in the back of a Plymouth Belvedere as you drove out to a strip mine to shoot beer cans with BB guns. But as I read this book, I kept thinking, "There is a movie in this."

When I was in my second year at law school, I went to go see the movie Black Robe, about a Jesuit priest trying to make converts in 17th Century Canada. There is a scene where the priest has been captured by hostile Iroquois and he stands waiting, hand held fast to a post, as the Iroquois chief impatiently sorts through clam shells to find one suitably dull to maximize the pain when he uses it to sever his guest's finger. I left that movie thinking that, even though I had chosen to be a lawyer, life could be worse. Reading Paul Spelman's book, I had the same feeling. But I laughed a lot more.

Herbert Wechsler on the ALI and His Career

(Orin Kerr)

I've blogged here before about the legendary law professor Herbert Wechsler. Thanks to Adam White, I've recently learned that there's a long interview with Wechsler recorded in 1989 that is now on YouTube . Part 1 is below (2 hours), and part 2 is here (36 minutes). The interview is mostly focused on Wechsler's work with the American Law Institute, which is only one part of his fascinating career, but it's at least an interesting glimpse.