Eugene Volokh's Blog, page 2718

Newspapers Have No First Amendment Exemption from Political Spending Reporting Requirements

(Eugene Volokh)

Regulations of campaign expenditures usually exempt the media (which has usually been read quite broadly to include most regularly published publications). Thus, for instance, the Federal Election Campaign Act, which as written banned independent expenditures of over $1000 in support of or opposition to a candidate, exempted the media — otherwise, the Act would have barred newspaper editorials for which over $1000 was spent, or which used more than $1000 worth of newspaper space (depending on how one decided to do the accounting). Buckley v. Valeo struck down the Act's independent expenditure limits on First Amendment grounds, but it upheld various disclosure and reporting requirements; these too would have applied to media expenditures, if it weren't for the media exemption in the statute. Likewise, bans on independent expenditures by corporations and unions (which were upheld by Austin v. Michigan Chamber of Commerce, though more recently struck down by Citizens United) have generally exempted the media, or else newspapers owned by corporations wouldn't have been able to editorialize.

Because of this, it generally hasn't been clear whether the media exemption was constitutionally mandated — whether a legislature could, if it wanted to, regulate newspapers' expenditures related to political campaigns the same way it regulated other expenditures. But Olson v. City of Golden (D. Colo. Sept. 1, 2011) held that such an exemption is not constitutionally mandated.

Until 2010, a Golden (Colorado) ordinance provided that, "Any person [other than a candidate, political committee, or issue committee] making ... expenditures totaling more than $50.00 shall deliver notice in writing of such expenditures to the City Clerk not later than three business days after the day that such funds are expended or services or materials provided." "Expenditure" was in turn defined as "the payment, distribution, loan or advance of any money for goods or services related to the support or opposition of any candidate, ballot issue, ballot question or issue."

In 2010, the ordinance was amended to exclude "any cost incurred in covering or carrying any news story, editorial endorsements, opinion or commentary writings, or letters to the editor by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication, including any Internet or electronic publication, that is viewable by the general public and is primarily devoted to the dissemination of news and editorials to the general public." But until then, the Golden ordinance had no such media exemption.

Marian Olson published The Voice of Golden, a free newspaper delivered by bulk-mail to 7,300 Golden households (apparently each month). The city concluded that Olson's editorializing about various candidates and ballot measures in her October 2005 issue was worth more than $50 (since it occupied more than a page, and the standard advertising rate for the newspaper was $50/page), and that Olson therefore had to file reports, which she hadn't done. The city sued, seeking "judgment declaring that Ms. Olson was in violation of the 2005 Ordinance, an order requiring Ms. Olson to abate violation of the 2005 Ordinance, and an award of costs, attorney fees, and interest associated with prosecuting the violation." The city eventually withdrew its claim, in exchange for Olson's reporting the October 2005 expenditures. But eventually Olson sued, claiming that applying the ordinance to her was unconstitutional.

Not so, the district court held:

There is no doubt that the press has a unique and important role in American society, especially in politics. However, Ms. Olson has presented no case law, and the Court has found none, holding that the First Amendment requires that the press must be excluded from campaign funding disclosure requirements....

In the absence of a press exemption like that in the FECA, a court simply applies the regulation to the publisher of a specific publication.... Therefore, the issue here is whether, under Buckley, the application of the 2005 Ordinance to the October 2005 issue of The Voice unduly burdened Ms. Olson's speech. Whether Ms. Olson to characterizes herself as "the independent press" is irrelevant. Press or not, she must show that, as applied to her in the context of October 2005 issue of The Voice, the 2005 Ordinance does not satisfy the Buckley test.

Viewing the application of the 2005 Ordinance to the October 2005 issue of The Voice through the Buckley lens, Golden has come forward with a compelling justification for the regulation. Ms. Olson is obligated to show either that 1) Golden's interest in and means of regulating disclosure differs with regard to publication of The Voice than it would to her as a private citizen expressing her own views, or 2) that her ability to comment and editorialize on political candidates and ballot issues in The Voice has been impaired by enforcement of the regulation. The general contention that campaign regulation might affect the ability of the press, as a general and abstract matter, "to comment and editorialize on political candidates and ballot issues," is not sufficient. Therefore, this challenge to the law as applied to her also fails.

[Footnote: Ms. Olson relies heavily on language from the legislative history of the FECA concerning the press exemption to argue that press/media entities cannot be regulated at all. The statement she quotes is from the House of Representatives Report, which clarifies that in enacting the FECA Congress did not intend to limit or burden "the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." This phrase does not create a constitutional standard prohibiting any and all regulation of news or media entities and, indeed, Supreme Court case law indicates otherwise. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) ("generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news").]

The conclusion that the press isn't constitutionally entitled to an exemption from laws affecting other speakers seems quite right to me, and also consistent with the original meaning of the First Amendment as well as its traditional interpretation (as I discuss in my "The Freedom ... of the Press," from 1791 to 1868 to Now — Freedom for the Press As an Industry, Or the Press As a Technology?, forthcoming in the University of Pennsylvania Law Review). But in any case, I thought this case would be interesting to people who follow the debates about campaign speech restrictions.

Liberal Reactions to George Will's Lochner Column

(David Bernstein)

I've been perusing the blogs to see how folks are reacting to Will's column on Rehabilitating Lochner, which I blogged about yesterday.

Many liberal commentators and blog commenters are taking the position that Will's defense of Lochner is obtuse because restoring liberty of contract would take the U.S. back to the labor conditions of a century ago, and allow employers to exploit employees. The underlying understanding of American economic history resembles what I vaguely recall from my fourth grade social studies class: big corporations oppressed helpless workers, until labor unions backed by federal labor legislation stepped in to even the playing field.

Put aside the fact that, as Will points out, the large corporate bakeries actually supported the hours law at issue in Lochner, while it was small, family run bakeries with little economic wherewithal that opposed the law (are you listening, People for the American Way bloggers?). More generally, it's a fallacy to think that working hours, conditions, and wages improved thanks to federal labor laws. Rather, all of these things improved because Americans got richer, with American workers becoming more and more productive.

Take the baking industry. After Lochner, there were no legal restrictions on how many hours a baker could work. According to the story liberals are telling, this should have meant that bakery employers in New York would now compel workers to work well more than the ten-hour a day limit the law invalidated in Lochner had imposed.

Instead, by 1909, only four years after Lochner, less than nine percent of bakers nationwide worked more than ten hours a day, and that nine percent were concentrated in basement bakeries that were rapidly becoming obsolete. Even New York's Jewish bakers, considered the worst-off of the city's bakers, successfully negotiated for a nine-hour day in 1910. By 1919, eighty-seven percent of bakers nationwide worked nine hours a day or less and only three percent of bakers worked more than ten hours a day.

Labor conditions, in short, improved without labor legislation. Labor laws can outlaw some outlier abusive practices, and help some workers in the short run, though usually at the expense of others. But, as rule, they don't raise productivity and societal wealth, which is what ultimately leads to a better deal for workers.

Justice Thomas Co-Teaches Constitutional Law Seminar at GW Law This Fall

(Orin Kerr)

The GW Hatchet has an interesting report about a new adjunct professor at GW Law this fall — Justice Clarence Thomas.

Senate Judiciary Committee Holds Hearing on Expanding CFAA — and Only Invites Government Witnesses

(Orin Kerr)

I've blogged a bunch about the dangerous scope of the Computer Fraud and Abuse Act (CFAA), and the remarkable fact that Congress seems poised to make the penalties in the act even higher. So here's an update: The Senate Judiciary Committee held a hearing yesterday on the proposals to expand the CFAA. No one other than government officials were even invited to testify. When asked if they wanted to have more power, the government officials responded that yes, they did.

Senator Leahy touched on the incredible scope of the CFAA at around the 50-minute mark, and he asked DOJ official James Baker what assurances he can give that DOJ won't abuse the incredible power the statute arguably confers over all computer users. Baker responded that DOJ is restrained by the fact that it has to answer to the Judiciary Committee to explain what it has been doing, and that on the whole DOJ has not abused its power in the past. The former answer is puzzling, given that I don't think DOJ has ever actually explained its view of the CFAA or ever been asked to defend any of its individual prosecutions in the 27 years the statute has been on the books. And the latter answer amounts to "trust us," which is rarely a heart-warming answer coming from the federal government.

I've co-signed a letter together with various liberal and conservative organizations urging the Senate to define the scope of the CFAA before enhancing its penalties yet again. You can read the letter here.

Fourth Circuit Rejects Mandate Challenges on Procedural Grounds

(Orin Kerr)

The Fourth Circuit has decided its mandate cases. In Virginia v. Sebelius, the court rejects Virginia's challenge on the grounds that the Commonwealth of Virginia lacks standing to sue. In Liberty University v. Geithner, the court holds that "[b]ecause this suit constitutes a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction Act strips us of jurisdiction" to decide the merits of the case. (Note that whether an assessment is a "tax" for purposes of the Anti-Injunction Act is different from whether it is a tax for purposes of the Constitution's taxing power.)

I should add, in light of my previous post, that both decisions are designated "published."

Rates of Unpublished Opinions in the Different Circuits — And Especially the Fourth Circuit

(Orin Kerr)

I recently came across a new Fourth Circuit decision on a very interesting legal question addressed in an unpublished decision. In United States v. Makwana, the Fourth Circuit considered the proper interpretation of one of the provisions of the United States Sentencing Guidelines — §2B1.1(b)(14)(B)(i) , which gives a sentencing enhancement for an offense that substantially jeopardized the safety and soundness of a financial institution — to a hacker who had programmed malicious code into a Fannie Mae computer and was caught before the code was executed. As far as I know, there was no caselaw on this question at all; this case is the first in which the the issue has arisen. In reading over the opinion, I was struck by a sense of deja vu: Here was a Fourth Circuit opinion on a novel and interesting question of law, and yet the judges had for some reason decided to issue the opinion as an "unpublished" decision — that is, a decision that is not binding precedent in the circuit. I've encountered this often over the years. The Fourth Circuit seems particularly reluctant to issue published opinions.

I decided to look for some real numbers, and I found this chart on the rates of unpublished opinions by circuits from 9/2009 to 9/2010. Here are the numbers listed from the highest percentage of unpublished decisions to the lowest:

Circuit/Percentage of Opinions that are Unpublished
4th Circuit/ 93.0%
3rd Circuit/ 89.8%
11th Circuit/ 89.6%
2nd Circuit/ 88.3%
5th Circuit/ 87.4%
9th Circuit/ 86.9%
6th Circuit/ 83.6%
10th Circuit/ 77.5%
8th Circuit/ 71.8%
1st Circuit/ 65.1%
DC Circuit/ 62.3%
7th Circuit/ 59.8%

According to the chart, the Fourth Circuit is the least likely to issue published opinions. Last year, only 7% of 4th Circuit opinions were published.

The obvious question is, why do different circuits issue published opinions at such different rates? I gather that much of the reason is docket size. Published opinions take more time, so courts with smaller dockets should have more time to publish. Indeed, the DC Circuit and 1st Circuits have among the high publication rates but also have the the two smallest dockets, while the circuits with the lowest publication rates tend to have the highest number of opinions issued per judge.

Some of the reason may also just be circuit culture, or even just the influence of one or two judges. For example, I've often wondered if the Seventh Circuit issues so many published opinions on relatively trivial legal issues just to give Judge Posner a chance to ruminate in the F.3d about issues suggested (although not actually litigated) in the cases he decides.

Either way, it does seem to me that the Fourth Circuit is a bit different from the rest. I often come across unpublished Fourth Circuit opinions that should be published because they concern important questions, weigh in on circuit splits, and the like.

Good Refinancing Experience

(Eugene Volokh)

I recently refinanced for what struck me as a very good rate, and I wanted to recommend the mortgage broker I used, Abi Said at Metro Capital Mortgage (abi at metrocapitalmortgage dot com). I found him through Zillow, I don't otherwise know him from Adam, nothing whatsoever changed hands to produce this message, no-one asked me to post about this, and I'm not looking for any favors from Said in the future (I'm not planning on refinancing again soon, since I doubt rates will fall any further). I just thought that Said got me good results, quickly and helpfully, and I wanted to pass along his name in case any of our readers find it helpful.

First Amendment Protects Blogger's Right to Display County Seal in Non-Misleading Ways

(Eugene Volokh)

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Fluvanna County, Virginia has an ordinance (enacted last year) providing that "The seal of Fluvanna County shall be deemed the property of the County; and no persons shall exhibit, display, or in any manner utilize the seal or any facsimile or representation of the seal of Fluvanna County for nongovernmental purposes unless such use is specifically authorized by law." Violators face a fine of up to $100, and up to 30 days in jail. A local blogger, Bryan Rothamel (Fluco Blog), uses the seal often in stories that refer to county government; indeed, it appears that his use of the seal is what triggered the ordinance. Rothamel sued the county, claiming that the seal display ban violates the First Amendment. Rothamel v. Fluvanna County (W.D. Va. Sept. 2, 2011) held the ordinance unconstitutional (in my view, correctly) as to Rothamel's use of the seal:

The County submits that the purpose of the ordinance is "to prohibit nongovernmental uses of the Seal ... that would have the effect of implying the authorization and approval of the County government when it had neither authorized nor approved the use." The interest in preventing private individuals or entities from conveying the false impression of having governmental sponsorship or approval is surely an important one. Thus, I must focus on whether the ordinance is narrowly tailored to further that interest.

The ordinance makes criminal a wide range of activity. Unless the exhibition, display, or use of the seal or an exact copy or representation of the seal is for governmental purposes or is specifically authorized, it is illegal and punishable by fine or imprisonment under the ordinance. This sweeping prohibition encompasses a substantial number of uses of the seal that would not suggest government endorsement, such as the display on a website of an exact copy of an official County news release that contains the image of the seal next to the text, or the publication in a newspaper of a photograph of a County official delivering a speech from a podium upon which the County seal is attached and visible.

Comparison of the County's regulation of the seal with the federal law governing the use of national government seals is illuminating. Title 18, Section 713 regulates the use of likenesses of the great seal of the United States, the seals of the President and Vice President, the seal of the United States Senate, the seal of the United States House of Representatives, and the seal of the United States Congress. It provides for criminal penalties for the knowing display of "any printed or other likeness ... or any facsimile" of the aforementioned seals "for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof." 18 U.S.C. § 713(a). FN10 The carefully drawn proscription presented in the federal law stands in marked contrast to the blanket prohibition here. The County ordinance curbs too much expression to be narrowly tailored to further the County's legitimate interest in preventing the seal's deceptive or misleading use. Under intermediate scrutiny, the ordinance's overinclusive reach is fatal. The County has failed to show that the ordinance is narrowly tailored to achieve its purpose of preventing the use of the seal to convey a false impression of government sponsorship or approval.

The County alludes to another interest it has in restricting the display of the seal: its interest in using its own property as it sees fit. The County takes the position that the showing of the seal by private citizens is not a form of expression at all; rather, the seal is government property, like a government vehicle or other form of personal property. The County states that Rothamel has no more right to display the County seal than he does to drive the County's automobile. Equating the appropriation of physical government property with the use of a likeness of an official government seal for expressive purposes does not pass muster in light of the history of treating private, expressive use of government emblems as private speech or expression. See[, e.g.,] Texas v. Johnson, 491 U.S. 397, 413–15 (1989)(recognizing that even though the American flag serves as an important symbol of nationhood, the government is not permitted to control the message expressed by a private citizen's use of the flag). While the County is correct that Rothamel does not have the right to take possession of a physical seal owned by the County, the County cannot control all privately-owned images or representations of the seal simply by declaring an interest in managing its own property. The First Amendment requires a more specific and substantial interest in restricting speech than the broad desire to safeguard government property.

The County asserts that the central issue of this case is "the extent to which the County can protect its own property from misuse." The only form of misuse of the likeness of the seal identified by the parties, however, is its display in such a manner as to imply County sponsorship or approval of a private message with which the County has not agreed to be associated. As I stated above, this ordinance is not particularly adapted to preventing deceptive displays of the seal's image.

I pause to note the property-based arguments that have not been asserted by the County as grounds for curtailing private display of the seal and of which I express no opinion. The County has not claimed that it has a substantial and important interest in limiting the seal's use because the County originally designed the emblem. Nor has the County claimed that its "own talents and energy," through "much time, effort, and expense," produced a seal that held considerable value. See S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533 (1987) (upholding law awarding the United States Olympic Committee the exclusive right to use the word "Olympic" for commercial and promotional purposes). It has not argued that even where display of the seal by private actors does not convey a false impression of government sponsorship, unconstrained display of the seal by the public dilutes the value of the seal as a unique signifier of County government. See S.F. Arts & Athletics, 483 U.S. at 539 (recognizing that most of the value of the word "Olympic" comes from its limited use). If there is merit to the County's interest in protecting its intangible property, the County has not met its burden of articulating a property interest sufficiently particular and important to meet its burden under the First Amendment.

The County insists that the ordinance remains constitutional under the theory that any display of the seal is government speech that the County can constitutionally control. The County begins with the well-founded proposition that the Free Speech Clause of the First Amendment does not regulate government speech, it only restricts government regulation of private speech. A government entity "is entitled to say what it wishes," and to select the views it wants to express. The County argues that the seal conveys the imprimatur of government approval of the speech accompanying it and therefore speech associated with the use of the seal is government speech, regardless of whether it was spoken by a private citizen or approved by the government. As government speech, the County argues that it may be regulated like any piece of government property and without concern for the FirstAmendment. The County cites Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125 (2009) as authority supporting its stance on this issue. In Pleasant Grove City, the Supreme Court held that Pleasant Grove City's placement, in a public park, of permanent monuments built and donated by private groups was a form of government speech and therefore was not subject to scrutiny under the Free Speech Clause. It reasoned that persons who observe donated monuments displayed on public property routinely and reasonably interpret them as conveying some message on the property owner's behalf. When governmental bodies accept donated monuments and place them on public property, the monuments are meant to convey and have the effect of conveying a government message. The Court emphasized that cities take some care in determining which monuments among those offered for donation to select for permanent display, as the character of city parks plays an important role in defining the identity that a city projects to others.

Importantly, the Court in Pleasant Grove City did not consider the monuments to be government speech simply because they became government property upon their acceptance by the government from private donors. Instead, the monuments represented government speech because governments intend the exhibition of monuments in public spaces to transmit a message, and persons visiting those monuments view those monuments as communicating a public message. The circumstances under which the Court treated public monuments as government speech are quite different from those in this case. Here, every use of the seal plainly does not have the effect of imparting a government message, nor is every use intended by the government to communicate something. Indeed, the County concedes that the display of the seal next to news commentary on Rothamel's blog and the reproduction of news releases containing the seal do not convey the impression of government sponsorship of the blog. Thus, the use by a private individual of a government emblem like a seal is private speech or expression, not government speech.

For the reasons I have discussed, and in consideration of the County's concession that Rothamel's display of the seal on his blog does not convey a false impression of government approval of his speech, I hold that the ordinance violates the Free Speech Clause of the First Amendment as applied to Rothamel's uses. Rothamel further claims that the ordinance bans a substantial amount of free expression and is therefore overbroad. Having found the ordinance unconstitutional as applied to Plaintiff's employment of the seal, I need not consider the ordinance's facial sufficiency.

The Puzzle of Black Women's Marriage Patterns

(Prof. Rick Banks, guest-blogging)

Yesterday I posted an excerpt from the introduction to my recently published book, Is Marriage for White People?. Today, Thursday and Friday I will examine three central issues the book examines.

Black women more frequently than any other group of women marry men who are less educated or lower earning than they are. More than half of college educated black wives have husbands who are less educated than they are. These relationships are more prone than relationships among socioeconomic equals to be conflict ridden and prone to divorce. Two different types of problems arise.

One problem is that both spouses may be uncomfortable with a situation in which the wife earns more than the husband. When the wife supports the family because the husband cannot, the husband may feel threatened, emasculated. Less discussed but not less important is that the wife may also think less of a husband who earns less than she does. Professionally accomplished wives may support their family financially, but they were not raised expecting to do so.

Of the empirical findings that support this interpretation, my favorite is this: When the husband earns the bulk of the income, the spouses are equally likely to have final say about financial decisions. When the wife earns the bulk of the income, in contrast, the wife is twice as likely as the husband to have final say about financial decisions. This finding mirrors a pattern that I noticed among the couples whose stories I recount in the book: His earnings are joint, but her earnings are hers. This is but one aspect of the incomplete transformation of gender roles.

A second problem is that professional women with working class husbands often experience a sort of cultural conflict. Although they share the same race, their educational and professional experiences differ and as a result their aspirations, outlooks and values may be distinct as well.

The prevalence of what I term marry down relationships thus contribute to striking racial disparities in divorce rates. Although good data about the likelihood of divorce is difficult to come by, as many as 2 out of every 3 marriages among African Americans end in divorce. Data do confirm that half of African American marriages dissolve within 10 years, compared to a third of whites' marriages.

Marrying down has not been given much attention in the media or even by scholars, but for African Americans it undermines the well-being of adults and children alike.

American University Law School Panel Discussion on National Security

(Kenneth Anderson)

Like many schools, my school — Washington College of Law, American University — is doing an event on 9/11 and the future of national security and counterterrorism.  Speaking immodestly, my school has an advantage in its senior national security scholars such as Dan Marcus as well as being located in DC, to be able to attract very important officials and former officials to speak on these topics.  I should have mentioned this some time ago, but tomorrow, Thursday, 12 noon, we will have Michael Leiter, former director of the National Counterterrorism Center, as keynote speaker, and then a panel that will include myself and my colleague Steve Vladeck — but more important than either Steve or I, it also features Lisa Monaco, the new assistant AG for the DOJ national security division, and Ivan Fong, general counsel to the Department of Homeland Security.  Dan Marcus will moderate.  Runs from 12–2:30, and there are maybe a few unfilled slots if you want to try and sign up to attend at the link, here.  It will probably be podcast or video posted at the school's site as well.