The ex-president had no right to Speech Contrary to his Official Duties

Bernard Ashe called me earlier today to ask me a question about the impeachment proceedings. Understand that Bernard, before he retired, was one of the country’s most distinguished lawyers, General Counsel of the New York State United Teachers (NYSUT) and the first African-American member of the Board of Governors of the American Bar Association (ABA). He has one of the sharpest legal minds of anyone I’ve known.

The question that Bernard asked me was characteristically incisive – doesn’t the government speech doctrine mean that the ex-president had no First Amendment protection for his actions as president of the United States. All federal employees give up the right to speak in ways that are contrary to the work of their offices. Insurrection is completely contrary to the legitimate work of a president. He has no right to claim protection for what he says in a government proceeding to hold him responsible for breaching his responsibility to the United States.

The letter of Constitutional Law Scholars on President Trump’s First Amendment Defense, signed by nearly 150  of us and dated February 5, 2021, touched on “the scope of the government’s power to limit its own employees’ public expression” but based its argument on a different doctrine, defining incitement, and concluded that the ex-president has no First Amendment defense.

But that issue of the government’s power is significant. As the Legal Information Institution at Cornell puts it, the Supreme Court, “relying on the government speech doctrine, has rejected First Amendment challenges to … disciplinary actions taken as a result of statements made by public employees pursuant to their official duties….” citing Garcetti v. Ceballos, decided by the Roberts Court in 2006.

In other words, there are multiple reasons the ex-president has no First Amendment defense to his assembling a mob, inciting it to violence and insurrection, and watching hopefully while the mob committed murder, mayhem, and damage to federal property. The ex-president’s claim of such a privilege is itself sufficient reason to bar him from ever again holding any public office in America. He is an outrage, an embarrassment and a danger. The gall of those who defend the indefensible should disqualify them too from any public office in this country, permanently.

Search

The First Amendment is no safe harbor for the likes of Trump

On the impeachment trial, free speech has never included a right to conspire, defraud, incite or defame. Trump’s “free speech” defense is just another of his false claims.

The Violence of Bigots; the Devil’s Pox on the Skin of America

October ended painfully: an anti-semitic attack in a Pittsburgh temple killed eleven; a racist attack at a Kentucky grocery store killed elderly African-Americans. Though hundreds of miles from here, friends and colleagues had losses. Close friends were married at that Pittsburgh Temple.

We missed the Sunday interfaith memorial in Albany but joined the Monday gathering at Temple Gates of Heaven in Schenectady. Approaching it, I saw friends who’d been Peace Corps Volunteers. Our job had been to extend this country’s hand of friendship to peoples abroad. Now we shared the pain from prejudice at home.

Schenectady Clergy Against Hate organized the memorial for a standing room only crowd, to share our grief for the dead, the injured, their families, and our country. The Clergy Against Hate consists of many denominations of Christian, Jewish, Islamic and eastern faiths, all of whom mourned the losses and stood for a world of love and concern. Minister Jonathan Vanderbeck, of Trinity Reform Church, told us “We stand against hate and oppression,” adding “that really carries throughout all our religious traditions.”

Our country included people of multiple faiths, origins, and languages from its founding. America’s revolutionary armies included free and enslaved Blacks, as well as Jews who had first settled in the colonies under the Dutch.

The Founders described America as a beacon shining a path from wicked, murderous hate elsewhere to an enlightened place of brother- and sisterhood. A “hundred years war” had scourged Europe in the 14^th and 15^th centuries. Thirty years of religious war devastated it in the seventeenth century. A global seven years’ war reached us as the French and Indian War. America’s Founders struggled to protect us from the killing, unifying us into one enlightened country, where we could learn to live with and benefit from each other.

Even before the First Amendment prohibited any establishment of religion or interference with each other’s freedom of religion, the Constitution made three references to religion, reading “no religious test shall ever be required as a qualification to any office or public trust under the United States”[1] and providing for a secular affirmation as an alternative to each provision for an oath.[2]

The Founders welcomed and encouraged immigration in order to people the continent. Most understood freedom and human rights as universal. Prominent members of the Constitutional Convention led anti-slavery societies. Southern insistence on slavery postponed the extension of freedom to all until the Civil War, after which the opening words of the Fourteenth Amendment were “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Think about the importance to America of that commitment to universal human rights. By coming here, immigrants from all over the world not only shared the effort and ingenuity that built our country, they showed by their presence that others could see themselves in America. Feeling that bond, civilized countries repeatedly allied with us to protect their freedom and ours. America helped create the European Union in order to bury centuries of warfare among European countries, uniting historic adversaries lest they fight again, and pull us into yet another World War. America led in developing international institutions and alliances which project the power of American ideals to protect us and much of humanity.

Racists claiming to represent the real America, are instead ripping out the veins and arteries that power our country. They’re doing the devil’s work to destroy all that has been great about America.

So don’t forget to vote – we’ve got work to do.

— This commentary was broadcast on WAMC Northeast Report, November 6, 2018.

[1] Par. 3 of Article VI.

[2] Art. I, §3; Art. II, §1; Art. VI, §3; and the 4^th Amendment.

Unions, Anarchy and the Court

The Supreme Court, the one in Washington, heard argument Monday in Janus v. American Federation of State, County and Municipal Employees. The case challenged whether unions, elected by a majority of the workers as their bargaining agent, can charge what are called agency fees, that is, fees for the work they do negotiating for better wages and working conditions. The argument against the unions is that the unions might advocate things that some workers disagree with and, therefore, worker dues are being used in a way that violates their freedom of speech.

The question is how far the Court majority is likely to take us toward anarchy. But first, three short paragraphs of explanation of the terms involved. Unions are selected in a carefully supervised process to be the exclusive bargaining agent for the workers in the shop. The union officers are elected in turn by the membership. The officers are always on those electoral hooks. The union can be decertified if people conclude that the workers no longer support that choice. And the officers can be defeated at the next election.

Unions are exclusive bargaining agents because a plurality of competing unions can’t represent the workers as effectively. Employers could just deal with compliant unions and leave the others out on strike. The responsibility to share the cost of the bargaining unit is necessary because without it, workers can be “free riders,” getting the benefits of their unions’ efforts while refusing to pay for it. That would undermine the unions’ ability to do their work.

From the perspective of the challengers to the part of union dues that supports collective bargaining and handling of grievances, those expenses are as political as lobbying and candidate support. For them, elections don’t matter, just whether union leaders say and act in ways that individual workers dislike. Their argument is that they shouldn’t have to pay.

So now I want to talk about the next case. Obviously many people object to the use of their tax dollars by President Trump to say things that they believe are horrendous, not to mention all the things he does that many taxpayers object to. Can they demand freedom from paying for his press officers and for any portion of his salary which is used for the purpose of making speeches, twits or statements. The logic is similar. The question is how far this union case can take us toward anarchy?

The same argument can be extended to the statements of whichever party opposes their own beliefs. Can taxpayers sue to defund all the press offices, and all the speechwriters, and the congressional TV studio?

There are problems with taxpayer suits. The Supreme Court might bar the door, but the principle is the same. And there are organizations and other parties who could probably make arguments that they are more injured than an ordinary taxpayer.

The same issues come up on the state and local levels too.

We might also raise the same questions about the Court itself. It is taking American law in directions many Americans strongly disagree with. There are costs involved in preparing opinions and publishing them. Do they also violate taxpayers’ First Amendment rights?

The Founders believed that elections solved the speech problem. But the Court views it differently. For the Court, corporations have First Amendment rights to speak for a majority of their boards, with the funds of their consumers. The dissenting board members, shareholders and purchasers, however, have no right to object to the use to which their funds are put.  Unions, by contrast, can’t speak for a majority of their members, despite the fact that they have available to them an electoral process that consumers don’t.

The logic of where the Court appears to be going is not law and order. Instead it is about anarchy. There is no law or government if each of us is a law unto ourselves, including those uses of speech that are necessary to the various jobs that officials and representatives have. There are anarchists in this country, and the gun owning, self-proclaimed “sovereign citizens,” are among them. The Republican Party, however, is anything but. Their party stands for social control. The issue for them is not authority itself but who controls what. Anarchy is anathema to majorities of both major parties and inconsistent with democratic government. But the Court may not understand the connection and the implications of what they are doing.

Religion Chautauqua Style

Instead of the mess in Washington, let’s talk about something positive. We just got back from a brief vacation in Chautauqua. I’ve been going there whenever possible since 1955 and I think it is valuable to talk about what it has meant to me, especially in this time when discussion of religion is so fraught.

Chautauqua had been founded in 1874 as an ecumenical summer school for protestant Sunday School teachers. Before the Civil Rights Acts of 1964 and 1965, ownership of property was still restricted to Protestants, although lots of us learned to love the place regardless of religious commitments. I’ve always felt welcome, no matter whom I’m talking with, who’s running things or whose chapel I’m in. Neighbor or stranger, I’ve been included and welcomed. That welcome was important to me; it influenced me to move beyond the familiar terrain of where I grew up in my choice of college, law school and subsequent career decisions.

The spirit of Chautauqua has always taken the sermon on the mount seriously. As Ben Franklin wrote in his Autobiography, “the most acceptable service of God is doing good to man.”[1] For Franklin that service to mankind was by no means limited to people of one’s own faith.

This summer I took a seat in the amphitheater at the Sunday evening Sacred Song Service. For some years, religious gatherings in the amphitheater included material from across the Abrahamic tradition, the three great religions which all trace themselves back to the patriarch Abraham. I have heard this religious and primarily Christian congregation recite from the Qu’ran along with Christian and Jewish liturgical prayers, poetry and song. This year I was particularly struck by the inclusion of a gorgeous Native American chant.

It’s a good feeling, affirming our mutual respect and appreciation. No one is diminished as we celebrate the best in ourselves and in each other. We walk out feeling stronger, wiser, more confident. Bridges among us are also bilateral entree, enlarging our options, prospects and opportunities as well as our understanding. They amplify both the good we can do in this world as well as our own security.

We shared embraces with friends from many traditions and from all over the country, shared a home cooked dinner with a pair of old friends, both of whom are Lutheran ministers, and went out for dinner with a former student of mine here in Albany who has become a Methodist minister. There is of course nothing unusual about this. But it is worth noticing that this is one of the strengths of our country and of Chautauqua in particular.

Nor, at my recent college reunions, was I diminished by reciting a Muslim prayer at a memorial service for deceased members of my college class along with prayers from the Christian and my own Jewish tradition. We are and were all human, with the strengths and frailties common to mankind. We find a common end in death as we shared the world in life. We remember each other fondly without regard to where they prayed.

Part of what made this country a beacon for the world was that we left our prejudices behind in the old world our ancestors left. Our First Amendment is, after all, a cry for brotherhood as much as it is a restraint on government. We keep government out of the religious tent because we celebrate both the rights of all faiths and our common humanity in brother- and sisterhood.

— This commentary was broadcast on WAMC Northeast Report, August 1, 2017.

[1] The Autobiography of Benjamin Franklin With Introduction And Notes (P F Collier & Son Company, ed. Charles W Eliot, New York (1909) [available online at The Project Gutenberg EBook of The Autobiography of Benjamin Franklin, Release Date: May 22, 2008 [EBook #148] [Last updated: November 10, 2011]]

Proposed Amendments to Overcome Citizens United

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).

The Anti-Union Court

The Court decided yesterday in Harris v. Quinn that at least some of the employees who work under a collective bargaining agreement don’t have to share in the costs of negotiating that agreement. The Court says it violated their First Amendment rights. How many unions and employees it will apply to is still unclear but this is not the first move the Roberts Court has made in that direction.[i] Sometimes the patterns matter much more than the individual decisions, whether good or bad.