Category Archives: Constitution

Can Government Compel Factual Speech?

One of my all-time favorite Supreme Court decisions is West Virginia Board of Education vs. Barnette. That 1943 case was brought by Jehovah’s Witness families whose children had been punished by their public school for a refusal to salute the flag–a refusal based upon their religion, which forbids such a salute as idolatry. Despite the religious basis of their refusal, the case was decided on free speech grounds, with Justice Robert Jackson penning words that would would be repeatedly quoted.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

The case established the principle that freedom of speech includes freedom from government-compelled speech. Now,  corporations opposed to disclosures mandated by agencies of government, are asserting that principle in order to avoid making required disclosures.

These companies are challenging regulations that require them to disclose emissions or inform the public of other data relevant to consumer and public health protections. They are claiming these regulations are unconstitutional–that they violate the compelled speech doctrine, which they assert protects them from government mandates forcing citizens to say something they disagree with.

Experts say the large corporations using this strategy are undermining efforts to regulate corporate behavior. They say these arguments limit states’ ability to act on matters not covered by federal law — and threaten everything from consumer warnings on toxic products to nutrition labels for restaurant food.

This argument is currently being used to challenge California’s emissions disclosure law, which requires companies doing business in the state to disclose how much pollution they create throughout their supply chain. Challengers argue that such laws unfairly compel them to engage in “controversial speech” — and argue that climate change is still controversial.

Right-wing groups have weaponized this “compelled speech” argument before, using it to defend organizations that refuse to give their employees adequate reproductive health care benefits and support unlicensed pregnancy centers that intentionally mislead their clients. The argument has impeded the government’s ability to investigate financial wrongdoing. Foreign kleptocrats and domestic companies have allegedly exploited this lack of transparency to launder money through real estate investments and shell companies.

Corporations are employing the argument in a wide variety of situations– from concealing the source of online political advertisements, to deterring states from addressing climate change. These efforts are being spearheaded by trade groups intent upon reducing or evading regulation, and the approach includes social media platforms.

A pending decision in the U.S. Supreme Court involving the strategy could decide the future of all social media platforms.

An advocacy group funded by Meta, Google, X (formerly Twitter), and other tech companies challenged a number of laws in Texas and Florida that would regulate how large social media companies control content posted on their sites. The companies argue that choosing the type of content that appears on their platforms is an editorial decision, and therefore protected by the First Amendment.

An amicus brief filed by the Knight First Amendment Institute at Columbia University, an educational organization that researches and promotes freedom of speech, points out that accepting the social media platforms’ argument would make it extremely difficult, if not impossible, for governments to govern user privacy, promote competition, and ensure smooth information exchange.

If the current Supreme Court majority included Justices who shared Robert Jackson’s intellect and ethical probity, rather than corrupt ideologues like Alito and Thomas, we could anticipate issuance of a decision carefully analyzing the difference between compelling the endorsement of beliefs and opinions, and requiring the disclosure of facts –the difference between respecting the integrity of conscience and facilitating the misleading of consumers.

The law often requires drawing intellectually-defensible lines–something the current Court majority seems incapable of understanding–or doing.

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Alito

Donald Trump– now a convicted felon–will undoubtedly still get millions of votes. (Hopefully, not enough to win back the Presidency.) And then, there’s the Supreme Court, where Clarence Thomas and Samuel Alito– both manifestly unfit to serve on any court, let alone the highest court– thumb their noses at their critics.

Let’s talk about Alito.

The New Republic recently reminded us of the multiple bases for original opposition to Alito’s nomination. There was the legal memo he’d authored in 1985 articulating his opposition to legal abortion–contrasted with his assurances to Senator Ted Kennedy that he would never vote to overturn Roe; his membership in Concerned Alumni of Princeton, an organization that opposed increasing admission of women and racial minorities; and later, his refusal to recuse himself in two cases involving companies in which he had financial interest, even after he pledged to do so.

Kennedy gave a thunderous address on behalf of the people that the “liberal coalition” aimed to represent, warning on the Senate floor of the dangers of Alito’s extreme ideology: “If you are concerned and you want a justice that’s going to stand for the working men and women in this country—it’s not going to be Judge Alito. If you are concerned about women’s privacy rights, about the opportunity for women to gain fair employment in America—it’s not Judge Alito. If you care about the disabled … the Disability Act that we have passed to bring all of the disabled into our society, if you are looking for someone that is going to be a friend of the disabled—it’s not going to be Judge Alito. 

Despite ample evidence of his dishonesty and rigid ideology, Alito was confirmed, and he has proved to be every bit as unethical and reactionary as Kennedy warned.

In the wake of the recent flag controversy–all of which this self-appointed arbiter of righteousness gallantly blames on his wife and most of which he has lied about–Alito is refusing demands that he recuse himself from cases involving January 6th and Trump.

As Robert Hubbell recently pointed out, the argument for recusal is painfully obvious.  If  Alito’s wife had flown a flag with a Swastika over their house, could Alito credibly claim that he had asked his wife to remove the flag but that she had refused because she “liked flags?” Could he credibly claim he didn’t understand the antisemitic meaning of a Nazi flag, and that there was thus no reason to recuse himself from a pending case about antisemitic speech?

Of course not.

Despite Alito’s breathtaking arrogance and dishonesty, the decision to recuse or not is not his to make. As Congressman Jamie Raskin has written in a New York Times op-ed, a constitutional provision and judicial precedents require both Alito and Thomas to recuse in these matters.

The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command…

Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line….

Chief Justice Roberts assured America that “Judges are like umpires.”

But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players.

Alito and Thomas are a disgrace to the bench. They should be impeached. That undoubtedly won’t happen unless the Democrats win a trifecta in November.



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What They’re Really Attacking

Most readers of this blog are familiar with the famous Martin Niemoller quote, uttered as the Nazis solidified control of the German government:

First they came for the Communists And I did not speak out
Because I was not a Communist Then they came for the Socialists And I did not speak outBecause I was not a Socialist
Then they came for the trade unionists And I did not speak out
Because I was not a trade unionist Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me.

The reason that statement remains so powerful is because it focuses on an essential truth: a government that can pick and choose among its citizens, a government that can empower some while disenfranchising or mistreating others, is a government incompatible with–and threatening to– basic human liberties.

As a former president of the ACLU put it, “Poison gas is a great weapon until the wind shifts.”

And that gets me to my frequent warnings about the real danger posed by the MAGA worldview–a worldview shared by autocrats like Trump and theocrats like Alito. As I have repeatedly noted, the Dobbs decision didn’t just target women’s rights–it undermined the constitutional principle that prevents government from invading everyone’s individual liberties and dictating all personal behaviors.

It isn’t just Dobbs. 

Axios recently reported that Indiana is one of a number of Red states that is refusing to follow a federal regulation meant to protect the civil liberties of LGBTQ+ youngsters.

The U.S. Department of Education expanded protections for LGBTQ+ students under Title IX last month — but Indiana has told its schools to ignore the guidance.

Why it matters: Indiana is one of many states that passed legislation in recent years targeting the LGBTQ+ community, particularly children.

  • A 2023 law requires schools to alert parents if their child requests a change to their name or pronoun, which teachers fear could force them to out transgender students, and earlier legislation blocked transgender girls from participating in girls’ school sports.

Driving the news: Indiana’s Department of Education advised schools “not to change their existing policies” in a memo last month, as first reported by WFYI.

  • “IDOE is currently working with legal counsel to review these new regulations, which among other things expands the definition of “sex” in Title IX,” the department said. “At initial review, these draft regulations will undoubtedly have major implications for Indiana schools and students and will likely be subject to legal challenges.”

The fine print: The federal guidance adds protections against “discrimination based on sex stereotypes, sexual orientation, gender identity and sex characteristics.”

  • The deadline for schools to adopt the rules to remain compliant for federal funding is Aug. 1.

There will undoubtedly be a lot of criticism focused on the fact that this rebellious noncompliance threatens critically-needed federal funding for public education. But it threatens far more than that. It is yet one more assault on the rule of law. It reinforces the Rightwing conviction that disagreement with a law constitutes an entitlement to violate it.

People who don’t believe women should have the right to control their own bodies, who view LGBTQ+ folks as “sinners” or worse, who remain convinced that Whites are superior to other races–in short, people who find it appropriate for government to “come for” some category of “Other”–fail to understand that a government empowered to award or deny privileged status is a government inconsistent with individual liberty and the rule of law.

At the end of the day, that is what is at risk in the upcoming elections. If would-be theocrats like Mike Braun and (especially) Jim Banks prevail (and worse, if their fellow Christian Nationalists should return Trump to power), we will see these persistent attacks on disfavored minorities used to further erode everyone’s individual liberties.

If we look honestly at American history, it becomes obvious that “states’ rights” always meant allowing state governments to privilege some citizens at the expense of others. When Braun says he wants to return the question of inter-racial marriage to the states, when Banks proposes federal legislation to ban abortions with no exceptions, they are just saying the quiet part out loud.

If people like Braun and Banks and Trump are elected, the wind will shift in a profoundly unpleasant direction. And unless you’re a White Christian guy, the government will eventually be empowered to come for you.

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Will The Real Republicans Please Stand Up?

In MAGA land, no insult is more cutting–or more numerous–than “RINO,” an acronym for “Republican in Name Only.” It is routinely hurled by the extremists who have remade a once-mainstream, center-right party into a racist, misogynistic cult of personality.

The Republicans with whom I worked back when I was one of them have mostly responded by leaving the GOP. Interestingly, however, some of those “RINOs”–more accurately described as traditional Republicans–have chosen to fight, to try to retake their party, and in Idaho, of all places. According to the Washington Post, the rebellion is taking place in an area with a history that has informed the effort.

Locals prefer not to talk about the hate that took root here a generation ago, when the Aryan Nations and other militants built a white supremacist paradise among the tall pines and crystal lakes of North Idaho.Community activists, backed by national civil rights groups, bankrupted the neo-Nazis in court and eventually forced them to move, a hard-fought triumph memorialized in scenes from 2001 of a backhoe smashing through a giant swastika at the former Aryan compound just outside of Coeur d’Alene, the biggest city in this part of the state.

For much of the two decades since, civic leaders have focused on moving beyond the image of North Idaho as a white-power fiefdom. They steered attention instead to emerald golf courses and gleaming lakeside resorts where celebrities such as Kim Kardashian sip huckleberry cocktails.

Now, however, North Idaho residents are confronting that history head-on as a new movement builds against far-right extremism.

Northern Idaho’s traditional Republicans are reacting to the current leadership of the local Republican Party, which they say has lurched to the right, especially on matters of race, religion and sexuality, giving the bigotry of the past mainstream political cover.

A group of disaffected, self-described “traditional” Republicans has spent the past two years planning to wrest back control from leaders who they accuse of steering the local GOP toward extremism, a charge the officials vehemently deny.

Those officials may “vehemently deny” the charge, but quotations from several of them in the Post tended to support the accusation. (One politico insisted that women should be required to carry a rapists baby to term…)

The linked story was published prior to Idaho’s primary, which took place last Tuesday.  On Wednesday, I googled to assess the success of the traditional rebellion. The slate of challengers backed by the North Idaho Republicans won 30 spots on the central committee, but they needed 36 seats to secure a majority.

I also learned that 15 incumbent GOP state legislators lost their primary races. I was initially hopeful that the successful challengers represented traditional Republicans; however, further investigation indicated that, at the state legislative level, far-Right conservatives took control. (If anyone from Idaho has further information, please confirm or correct my impression.)

The effort in Idaho illuminates the challenge facing a once-responsible political party: Can genuine conservatives–voters and operatives holding center-Right policy positions on economic and social issues–take back the GOP, and return the racists and culture warriors to the fringes? If not, where will thoughtful, respectable Republicans go?

In the short term, an extremist GOP can win elections by deploying its demonstrable skills at voter suppression, abetted by the various mechanisms of the American electoral system that give rural voters and a handful of states disproportionate power, but–absent a wholesale takeover that includes revising/ignoring the Constitution– that dominance will have a limited shelf-life. The once Grand-Old-Party will either turn away from the White Christian Nationalists who currently control it (and who represent a distinct minority of Americans), or a new center-Right party will rise from its ashes.

That result, of course, is long-term. The short-term crisis we face is the November election.

If the GOP manages to retake the White House or Congress, all bets are off. A second Trump administration is publicly committed to removing any remaining legal or constitutional guard-rails, setting America on a path to autocracy and chaos.

The sanity vote has never been more important.

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As The Legal World Turns….

The news that a symbol supporting the January 6th insurrection had hung outside Justice Alito’s home was stunning. It was so outside everything lawyers have been taught about proper judicial behavior and ethics that anyone who has ever studied the law, or the role of the courts, was incredulous. If there was any doubt about its significance, or the dishonesty of Alito’s attempt to blame his wife, a subsequent report–with photos–shows that Christian Nationalist “Appeal to Heaven” flag, used by January 6th insurrectionists, flew for two months at Alito’s beach house.

As Robert Hubbell writes, “Alito is signaling his partisan allegiance and Christian nationalism. As I wrote yesterday, we should take him at his word. If we do not, he will continue to vote for outcomes and write opinions that are antithetical to the liberties guaranteed in the Constitution.”

It doesn’t really require legal training to understand how profoundly Alito violated norms of appropriate judicial behavior. If a local judge flew a flag supporting one side of a case over which he was currently presiding, ordinary citizens–not to mention the local bar association–would immediately demand removal of both the case and the judge.

I may feel this incredible impropriety more strongly because I approached the teaching of my policy classes through a constitutional lens. I taught my students that the Constitution and Bill of Rights constrain policy choices–that legal precedents determine the boundaries of legitimate government action. I’ve previously explained that Alito’s Dobbs decision threatened far more than reproductive rights–that it undermines a longstanding legal doctrine that draws a line between permissible and forbidden government interventions.

I’m no longer teaching, and I really don’t know how I would handle the reality that “settled” constitutional interpretations are being routinely ignored by Justices on America’s highest court, so I sympathized with the law school professors interviewed on that issue by The New York Times. As one said,

One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means,” he said. “And the degree of difficulty of that proposition has never been higher.”

That difficulty was addressed by the professors interviewed by the Times. As several noted, teaching constitutional law has for many years been based on an underlying premise: 

That the Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity, than in imposing a partisan agenda.

The premise no longer holds today. Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way. 

The mounting concerns of legal scholars are shared on both the political left and right. Michael McConnell is an extremely conservative legal scholar who has criticized the analyses of even the cases that reach his preferred conclusions. He worries that the dishonesty and hypocrisy of these justices is undermining the respect required by the rule of law.

Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand, and he asks: ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”

As Maya Angelou told us: When someone shows you who they are, believe them.

Alito’s breathtaking breaches of judicial behavior leave no doubt about who he is. He should be impeached.

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