Tuesday, March 20, 2018

"A First Amendment for All? Free Expression in an Age of Inequality"

David Pozen

Readers in the New York area: The Columbia Law Review will be holding a day-long symposium this Friday, March 23, that asks how First Amendment law might be reimagined for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The panels are organized around works-in-progress by Jack Balkin, Catherine Fisk, Leslie Kendrick, Genevieve Lakier, Jed Purdy, Bertrall Ross, and Mike Seidman. (Fisk’s and Seidman’s drafts are already online; all of the papers will be available in hard copy at the event.) More information about the symposium, which is cosponsored by the Knight First Amendment Institute and the Center for Constitutional Governance, can be found here. It is free and open to the public, but registration is required.

Sunday, March 18, 2018

Stormy Daniels and Cambridge Analytica


Mark Graber has argued that the First Amendment should protect Stormy Daniels' violation of her nondisclosure agreement with Donald Trump. I doubt that this is correct-- for reasons described below, I think her best argument sounds in contract law. But even if Mark is correct,  I want to argue in this post that there are very good reasons why the First Amendment generally does not forbid enforcement of contacts that prevent the disclosure of sensitive personal information. Most companies' privacy policies depend on this proposition. These considerations are especially important in the digital age. We should not use First Amendment doctrine to make it difficult if not impossible for governments to implement reasonable privacy protections that will prevent the disclosure and manipulation of sensitive personal information.
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Saturday, March 17, 2018

Stormy Daniels and New York Times Co. v. Sullivan

Mark Graber

Stormy Daniels’ effort to talk about her affair with Donald Trump is better protected by the First Amendment than contract law.  The Supreme Court in New York Times Co. v. Sullivan (1964) limited the power of states to pass tort laws that chill or suppress speech about the qualities of public officials or candidates for public office.  The specific decision in Sullivan was that the constitutional interest in vigorous debate over the vices and virtues of public officials constitutionally outweighs the interest of those officials in suppressing negligently false speech about themselves. If the Constitution prohibits state tort laws from sanctioning negligently false statements about public officials or candidates for public office, then the same First Amendment plainly prohibits state contract law from sanctioning true statements about public officials and candidates for public office. Public officials and candidates for office should no more be able to suppress criticism of their behavior through non-disclosure agreements than they are through libel laws.

Sullivan provides Stormy Daniels with a strong constitutional foundation for having her non-disclosure agreement with Donald Trump or Trump’s representatives declared judicially unenforceable.  The Supreme Court has repeatedly declared that the First Amendment primarily protects the social interest in a robust marketplace of ideas.  The Roberts Court protects the First Amendment rights of corporations because they provide ideas and information to the public, not because corporations in themselves have political rights.  State laws that sanction speech subject to a non-disclosure agreement and state laws that sanction negligently false statements both chill speech. The public interest in learning about the information being suppressed by non-disclosure agreements is clearly as great, if not greater, than the public interest in obtaining negligently false statements.  As important, no public interest supports allowing public officials or candidates for public office to buy off persons with potentially damaging information.

Contracts against public policy are void, even when no one bargained for an illegal action.  Common law courts refused to enforce promises not to marry.  The Supreme Court of the United States in Shelley v. Kraemer (1948) refused to enforce an agreement among white homeowners never sell to a person of color.  Sullivan declares that public policy in the United States encourages speech about public officials and candidates for public office.  Non-disclosure agreements are inconsistent with the policy when they prevent speech on matters of vital public interest solely because that speech may place powerful people in a bad light. The alternative would allow the most affluent citizens, who already have the right to buy as much favorable speech as they wish, to buy the right to silence as much unfavorable speech as they desire. 

UPDATE: Daniel Solove and Neil Richards published an excellent piece in the 2009 Columbia Law Review on when ordinary tort and contract law should be allowed to restrict speech.  They have thought far more seriously about the subject than I have (or intend to do).  I nevertheless confess that I would fine-tune their analysis of non-disclosure agreements.  I think there is a public interest in having certain conversations remain confidential, so the First Amendment does not trump what Trump tells his doctor or lawyer (or as in a Supreme Court case, a journalistic promise of confidentiality in order to receive certain information.  But I think a there is a real First Amendment problem in allowing persons to use non-disclosure agreements to buy up critical speech.  

UPDATE REDUX:  I do not think Jack Balkin and I disagree very much, and probably not on how most particular disputes ought to be resolved.  We agree that non-disclosure agreements are judicially enforceable when legitimate reasons exist for non-disclosure, such as medical practice, religious confessions, the need for journalists to obtain information for anonymous sources.  Ordinary privacy rights are not at issue, since good reasons exist for those privacy rights.  We also agree that affluent citizens cannot buy up critical or damaging speech in the absence of some good reason for privacy.  Jack thinks this can be resolved purely within contract law.  I think the public policy exception in contract law in these situations only makes sense in light of the public policy expressed by the First Amendment or the Constitution that, for example, in a dictatorship that recognized contract law, the ruling figures would have a right to buy up critical or damaging speech.

Friday, March 16, 2018

National Conference of Constitutional Law Scholars

Stephen Griffin

Inspired by Larry Solum's efforts at live blogging scholarly conferences, I am in Tucson at the inaugural meeting of the National Conference of Constitutional Law Scholars.  This is a very good idea put together jointly by Andrew Coan (Arizona), David Schwartz (Wisconsin), and Brad Snyder (Georgetown) and funded by the University of Arizona's Rehnquist Center.  The papers I mention are available (I assume) from Andrew.  It's a great conference, with an interesting mix of scholars at different stages of their careers.  I was just listening to Aziz Huq presenting a paper on "Apparent Fault," followed by Victoria Nourse talking up a terrific paper, "Reclaiming the Constitutional Text from Originalism."  It's part of a book she is working on which I can't wait to read.  Jamal Greene is commenting.

Previously this morning, we heard a wonderful set of papers on the political process, including Tabatha Abu El-Haj's "Networking the Party," on thinking about political parties as associations, Aaron Tang rethinking how notions of political power are factored into judicial review, and Franita Tolson on how the elections clause relates to Shelby County.  Other presenters and papers included Deborah Pearlstein's "Executive Noncompliance and the Effectiveness of Legal Constraint,"  Jeffrey Schmitt on the public land clause and an excellent panel on the related ideas of animus, dignity, and special legislation featuring William Araiza, Luke Boso, and Evan Zoldan.

Just an excellent conference that amounts to a much-needed professional reaffirmation of the project of doing constitutional law and theory at this difficult time in our nation's history.

Other notable papers being presented today include Shalev Roisman on "Presidential Factfinding" (really interesting topic); Rebecca Aviel on "Revisionist Rights Talk"; Yvonne Lindgren's "Scapegoating Abortion Rights" and Yxta Murray on "The Takings Clause of Boyle Heights."  Richard Primus continues his inquiry into the enumerated powers doctrine by looking closely at the original debate over the national bank in Congress in relation to the development of Madison's views; Christopher Schmidt is currently presenting on "Section 5's Forgotten Years" (very interesting paper) and David Schwartz follows with "The Strange History of Implied Commerce Powers."  Ilan Wurman continues his intervention into originalist theory with "Constitutional Primary and Secondary Rules."  My own contribution, which I hope to post soon on SSRN, is "Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change."  Lots of great work going on advancing our understanding of the Constitution.

Explaining the Persistence of "Impure" Legal Theories

David Pozen

Jeremy Kessler and David Pozen

In a recent post, Professor Barzun attributes to our article Working Themselves Impure the argument that when prescriptive legal theories (such as originalism, textualism, and cost-benefit analysis) persist past the point of “impurification,” they do so “because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.” Our explanatory hypothesis for theory persistence is neither as narrow nor as cynical as this formulation suggests. As we discuss in the article, legal theorists and practitioners have a wide range of plausible motives for adhering to an impure theory—one that no longer serves its initial normative commitments and instead advances a set of weaker and less determinate claims.

Conscious desire for professional advancement is one such motive. But our article does not place much emphasis on it, as the excerpts below reflect. Far more significant, we suspect, are practical and political considerations as well as unconscious motives traceable to ideological and institutional conditioning. The broader point here is that both the persistence of any given impure theory and the real-world effects of that persistence cannot reliably be explained without investigating the diversity of potential reasons why people would continue to endorse such a theory.

From our article’s introduction:

[T]he persistence of ever-more-adulterated legal theories cannot be explained by broad acceptance of their initial normative commitments, for the price of persistence is the unraveling of those commitments. When such theories endure, we can expect to find them serving interests or ideals exogenous to their stated aims. The continuing bipartisan embrace of originalism, for instance, may be bolstered by its tendency to enhance the political prestige of lawyers or the moral prestige of American nationalism. In any event, the real basis for the persistence of an adulterated prescriptive legal theory—and the real stakes of that theory’s persistence—will be only dimly illuminated by the theory itself.

And from the last few pages on which Barzun focuses:

[I]n light of the weaknesses of alternative explanations, the exogenous hypothesis—that highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves—strikes us as the most useful starting point for further empirical work.

If this hypothesis proves correct, it would warrant an important caveat to Part V.A’s relatively optimistic take on the life cycle. To whatever extent highly adulterated theories persist because they serve interests and ideals “off the page,” such persistence will not merely recapitulate the legal and political status quo. Instead, it will subtly shift the balance of social and economic forces within the status quo. At T6 of the life cycle, some legal actors will be in a more powerful position than they were at T1, and so will be better equipped to resolve the underlying dispute on favorable terms. Recapitulating a debate about the definition and enforcement of fundamental rights through an originalist lens could influence the ultimate outcome of the debate insofar as a bipartisan embrace of originalism enhances the persuasive authority of certain lawyers—for example, those steeped in Founding era history—or links the question of rights to a certain vision of American nationalism or exceptionalism. On multiple levels, then, adulterated theories may exert disciplinary effects on the legal academy and the practice of law even when they fail to achieve their internal goals—altering not only which sorts of lawyers (and nonlawyers) are in or out, up or down, but also which styles of research, rhetoric, and justification have more or less currency. These effects operate at the level of ideas and institutions, not just individual reputations and aesthetics.

A new research program for public law scholarship might investigate these dynamics within the framework of the life cycle model. The life cycle suggests that systematic scrutiny of the indirect and unintended effects of prescriptive legal theories is integral to understanding why these theories succeed, and to assessing the costs of that success.

Pace Barzun, the article’s life cycle model directly engages with “the substance of [a given] theory’s claims and assumptions.” Indeed, it is only when those claims and assumptions have broken down that the puzzle of a theory’s persistence comes to the fore. In the absence of the claims and assumptions that explicitly motivated the theory in the first place, investigation into other possible motives for adhering to the theoryand into the possible consequences of such adherence—is in order. Nothing in Barzun’s proposed deconstruction of the distinction between internal and external explanation in the social sciences undermines this point. We leave it to readers to judge whether our approach or Barzun’s is more likely to stimulate fruitful scholarly inquiry.

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