Ira Glasser was Executive Director at the American Civil Liberties Union (ACLU) for 23 years, and, though he is usually known more for struggling for racial justice, Glasser also often defended the First Amendment. He testified, for example, at hearings in 2000 about campaign finance legislation. Although he retired in 2001, he still speaks about the First Amendment, including during a recent long interview with the Foundation for Individual Rights in Education (FIRE):

If you give the government the power to ban speech, your speech is gonna be the first speech banned. The only protection minorities have and dissenters have is a rule which doesn’t allow the government to decide which speech is okay because it won’t be theirs. … And people tend to imagine that they will be the ones making these decisions, but, of course, people like us never are the ones making those decisions.

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I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. The people who wrote it and founded – two minutes after the First Amendment was passed and ratified, they passed the Alien and Sedition Acts. I mean, and nobody – oh, but that John Adams saying you couldn’t criticize the president, it wasn’t the king of England so it was okay. Well, it wasn’t okay for the people who wanted to criticize John Adams, and the whole story about speech in America and anywhere really is that, as I used to sort of say half tongue in cheek, everybody is in favor of free speech as long as it’s theirs or people that they like and agree with.

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The notion that by limiting the amount of money you can spend on a right doesn’t restrict the right is absurd. It’s a fantasy. I mean, if I’m at the ACLU and I want to take out a full-page ad to advance a civil liberties cause, where – I have to spend the money to buy the space in the Times. If I’m planned parenthood and I want to take out an ad advancing the right to contraception and I want to buy it at the super bowl, I have to spend money. If I want to distribute leaflets, a fundamental First Amendment right, I have to produce the leaflets. Sometimes the cost is considerable, sometimes it isn’t considerable, but you ask anybody who’s ever run a political campaign, what about buttons, what about leaflets, what about travel, what about going to – you can’t exercise your First Amendment rights without spending money, can’t be done unless you sit around like you and I in a little apartment by ourselves, nobody listening, and we have all the right to free speech we want, but –

there is no way to exercise the right to free speech in an effective way without spending money for the dissemination of that speech, without spending money to make that speech audible and visible. You know, the right to free speech is not the right to sit in the closet by yourself and mutter. It, it requires you – to be effective, it means you have to get out there and reach many, many people, otherwise the government could let you speak all you want if you only get to speak to yourself and three people that you know. It’s only when the speech gets to be disseminated that’s a problem, and there is no way to disseminate it without money.

In an electoral campaign that’s even more true, and that’s always been true. It’s not something that just became true, it’s always been true, and now what people are upset about is that the severe disproportion of wealth and money in this society creates a severe disproportion of speech. They are upset about that, but giving the government the power to restrict speech is not the answer.

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What world are they living in when they think that you can carve corporations out without even distinguishing between the corporations you hate and the corporations you support, and think that the Constitution doesn’t apply to them. So, what does that mean? Does that mean if the FBI wants to walk in and rummage around in the ACLU files it can. That they can go into Planned Parenthood’s office and search without a warrant, that they can suppress our speech because they – it’s not – that’s not a fantasy, they did it. That’s what the campaign finance laws have been. If you look at the case law, that’s who the government goes after. It goes after the centers.

 

I don’t know why a little-noticed speech Justice Samuel Alito gave in February to the annual meeting of the Claremont Institute has suddenly blossomed into something to be remarked upon, but it’s always a good idea to see what Supreme Court Justices think about public policy advocacy topics. To quote Calvin Terbeek in the Faculty Lounge blog: “This is a speech worth paying attention to.”

Unfortunately, even the Claremont Institute hasn’t put out a video of the speech, having marked what had been available as “private” and thus not viewable. Fortunately, the mavens at SCotUSMap (which tracks the travels of the various Justices) have produced a partial transcript, from which these public policy advocacy-related excerpts are extracted:

Our Constitution does not give free rein to the majority. Our Framers knew very well that the majority may oppress. And therefore, our Constitution places fundamental rights beyond the majority’s reach, and the Supreme Court has the responsibility to protect those rights.

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Our constitutional system cannot survive unless citizens are allowed to speak freely on issues of public importance. Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans.

But today, unfortunately, freedom of speech on important subjects is, I believe, in greater danger than at any prior time during my life. Powerful forces want to silence the opposition. Consider this: in the last Congress, 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.

This is a startling development. The very idea of amending the First Amendment is quite something. And if this amendment were adopted, freedom of speech as we have known it would be transformed.

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[I]t is not comforting to see how European nations that profess to respect freedom of speech deal with the speech of the unenlightened side on cultural issues. I’ll give you two examples. In France, a group recently wanted to air a video on Down Syndrome Awareness Day. It is called, Hello, Future Mom. And in the video, children speaking a number of different languages, children with Down Syndrome speaking a number of different languages, attempt to show that they are able to live happy lives, albeit not without a lot of difficulty and sacrifice on the parts of their parents. The message is entirely positive. I advise you to view it on YouTube. I found it quite moving. You may agree with it, you may not agree with it, but that is not really the point.

The French authorities banned the video on French TV. Why? Because it was, quote, likely to disturb the conscience of women who have lawfully made different personal life choices.

Alright, you may say, this is France, they have a different legal system and a different history. Let’s move across the English Channel to Great Britain. In a leading case in Great Britain, a street evangelist named Harry Hammond made a sign that says, quote, Jesus gives peace, Jesus is alive, Stop immorality, Stop Homosexuality, Jesus is Lord. Now again, you may agree with it, you may disagree with it, that’s really beside the point.

What did Mr. Hammond do? One afternoon, he took his sign to the town square and held it up, and some of the people who saw it took offense. They attacked him. They threw mud on him, they pushed him to the ground, they tried to take his sign away. The police arrived, and they made an arrest. Who did they arrest? They arrested Hammond. He was charged with a crime and he was convicted and fined because his sign was insulting. He gave offense.

More troubling than these developments abroad is the erosion of support for free speech among the young, particularly students, and particularly college students. Students increasingly believe that it is legitimate, and indeed, essential, to ban speech that gives offense, or, to use a popular phrase, speech that makes them feel unsafe.

A recent article just within the time I’ve been here reported these survey results: a majority of high school students share this view. They think it’s right to ban offensive speech. Now where did they get this idea? The survey shows that a near majority of high school teachers also share this view.

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Now, I think we should aim in our public discourse for debate that is rational, that is civil, and that is conducted in the spirit of goodwill. But important ideas are sometimes disturbing. They may offend. Self-government is not for the faint of heart. But what is going on in these schools is really a moral virus that is threatening to the future of our country. As Learned Hand aptly said years ago, liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can do much to help it.

If the American people come to accept the views of our European friends, or the university vanguard, that speech can be banned if it makes them feel uneasy, if it gives offense, it is really hard to see how government of the people, by the people, and for the people can survive.

President Trump vowed to “destroy” the Johnson Amendment, which is actually the portion of IRC § 501(c)(3) that says that no charitable organization may “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”  What he signed as an Executive Order on May 4 doesn’t actually do that.

Section 2 of the Executive Order says,

Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.  As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.

Distilling the second sentence: “Treasury [shall] not take any adverse action … on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as” within the Johnson Amendment.

In other words, rather than permitting speech that previously has been treated as within the Johnson Amendment, this sentence says that such speech will be protected against adverse action only if it “has … not ordinarily been treated as participation or intervention in a political campaign.”

Now the important umspoken element is that the IRS already has effectively a policy of non-enforcement of the Johnson Amendment against religious organizations, as epitomized by the lack of enforcement against churches which actively promote their own violations of the Johnson Amendment during “Pulpit Freedom Sunday.” This organized effort has been going on for years. And, as Notre Dame Law School’s Lloyd Hitoshi Mayer has shown, there’s no evidence of church audits or other IRS actions against other religious organizations under the Johnson Amendment in recent years, even though the likely incidence of violations is greater than the IRS projects.

So the net effect of an Executive Order saying “all y’all keep doing what you’re doing” is to say “don’t do much at all.” Except it leaves that Sword of Damocles just hanging there. And doesn’t do what was promised.

Maybe the rest of the EO contains something more akin to what President Trump was talking about? Well, Section 1 does say: “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. … The executive branch will honor and enforce those protections.” That might, in some circumstances, be citable in court or in regulatory proceedings. But that is weak sauce, given that the federal government hasn’t actually said that it WON’T “honor and enforce” “Federal law’s robust protections for religious freedom.” And in the face of the specific directions of Section 2, that general promise is unlikely to mean much to tax law.

Same with Obamacare mandates, dealt with in Section 3, but only to the extent of requiring Treasury, Labor and HHS to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.” Not sure there are even any Treasury regulations, even those applying to new Obamacare mandates, that might cover conscience-based objections.

Section 4 of the EO does require the Attorney General to issue guidance “interpreting religious liberty protections in federal law.” But again, only “as appropriate.”

Those panting to complain about gutting the Johnson Amendment were dumbfounded. The ACLU decided not to challenge it, calling it an “elaborate photo-op with no discernible policy outcome.” Even Trump supporters were “underwhelmed.” And, of course, some on both sides didn’t bother to read the EO itself.

Perhaps the most egregious response? The Freedom From Religion Foundation’s legal challenge, filed by their attorney Richard L. Bolton of Madison, Wisconsin, which was filled with typos (for example, P. 5, naming IRS Commissioner “Josh” Koskinen) and getting the EO exactly backwards. FFRF contends that it will suffer “devastating and irreparable” harm because it won’t get the same “lax” treatment as religious organizations, while the EO actually says that religious organizations will get only the same lax treatment as anyone else.

John Pomeranz, of Harmon Curran in Washington, D.C, is leading a panel discussion of the Johnson Amendment this Friday at the May meeting of the American Bar Association’s Tax Section. The panel, which was set up long before the actual text of the EO was drafted, has its work cut out for itself now. Maybe those experts can come up with some reason we and the media should be spending much more time on this non-event.

Last year, 180 of the Nation’s most influential people lined up on the steps of the Supreme Court of the United States – and you probably don’t know any of them. They lined up for the memorial service for Justice Antonin Scalia. These are clerks to the Justices of the Supreme Court, and that service generally establishes them to a lifetime career at the highest levels of the legal profession.

It also affects almost all jurisprudence in the U.S. Through a device known as the cert pool, the Supreme Court clerks control the fate of the most contentious and important cases facing the Supreme Court.

Each Justice can hire up to four clerks, usually the best and brightest of those clerking before the U.S. Courts of Appeal. The Supreme Court receives 7,000 petitions for certiorari each year, and grants, in recent years, about 75. The flow of petitions comes in huge waves with the daily deliveries to the clerks for each Justice.

In 1973, Chief Justice Warren Burger and Justice Lewis Powell established the cert pool agreement to spread the load between offices. Since 2010, all sitting Justices participated in the pool, except Justice Samuel Alito. All incoming petitions are randomly divided to members of the pool, so  a single clerk reviews a petition and writes a memo summarizing the petition for all the Justice’s offices. If a petition doesn’t catch that clerk’s eye, it likely won’t get cert. You can see the problem there; perfectly good cases can be deemed not cert-worthy by one young person’s review.

The title of this post comes from a law review article by Ken Starr, a former Supreme Court clerk, U.S. Court of Appeals judge, Solicitor General of the U.S., and dean of two universities. “The prevailing ethos is that no harm can flow from ‘just saying no.’ Self-confident law clerks can rest assured that few, if any, recriminations will attend their providing guidance to the Court to deny certiorari.” 90 Minn.L.Rev. 1363, 1376 (2006).

Although all Justices purport to thoroughly review all clerks’ memos, only Justice Alito didn’t get the pool memos; even then, Justice Alito relied on his four clerks to review 7,000 petitions. Still, that’s at least two sets of eyes on the petition flow.

Today’s New York Times reports that new Justice Neil Gorsuch has now opted out of the cert pool as well. The reporter, Adam Liptak, has followed the cert pool for many years. So now that’s three sets of eyes on the petitions.