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The First Amendment – Speech I

• The Addition of the Bill of Rights (43).
• Amemdment Process – Article V (817-818).
• Amendments Outside Article V (821-822 notes 14 and 15).
• Barron v. Baltimore (48-53).
• The BIll of Rights (827-831).
• The First Amendment (831-839).
• New York Times v. Sullivan (853-861).
• Chaplinsky v. New Hampshire (880-884).
• Categorical exclusions (885-887).

Barron v. Baltimore

Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.

This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.

Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.

Here is a transcript of the advertisement.

The New York Times
NEW YORK, TUESDAY, MARCH 29, 1960

“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
– New York Times editorial
Saturday, March 19, 1960

Heed Their
Rising Voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury”-a I under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.

Sullivan is standing to the right of the horse.

Here is Sullivan talking with police officers.

Here is Sullivan with his family in 1962.

Chaplinsky v. New Hampshire

Are these fighting words?

Walter Chaplinsky, a Jehova’s Witness, would often preach in Rochester, New Hampshire’s Central Square.

 

 

You can download it here

Kimberly Stawbridge Robinson (no relation to Curtis) wrote a solid overview of Crane v. Johnson–Mississippi’s challenge to DACA–which the 5th Circuit recently tossed on standing grounds. I am quoted in a few spot:

Tipping Its Hat. Josh Blackman, who filed an amicus brief with The Cato Institute supporting the state in the Texas case, said that the Mississippi and Texas cases ‘‘are quite different.’’

Blackman, a law professor at the South Texas Col- lege of Law, Houston, told Bloomberg BNA via e-mail April 8 that the Mississippi ‘‘case was filed in 2012 shortly after DACA was implemented. To show stand- ing, [Mississippi] relied on an outdated 2006 report on the effect of illegal immigration on the state.’’

The Fifth Circuit said that was insufficient to confer standing.

‘‘Mississippi submitted no evidence that any DACA eligible immigrants resided in the state,’’ the court said. ‘‘Nor did Mississippi produce evidence of costs it would incur if some DACA-approved immigrants came to the state.’’

‘‘Mississippi was required to demonstrate that the state will incur costs because of the DACA program,’’ the court said. ‘‘Because Mississippi’s claim of injury is not supported by any facts, we agree with the district court that Mississippi’s injury is purely speculative.’’

In contrast, Blackman said that the ‘‘Texas case was filed in 2014, two years after DACA was implemented. To show standing, Texas (and 2 other states) offered detailed affidavits documenting specific cost to the state for providing driver’s licenses to DAPA beneficiaries.’’

He said that a concurring opinion by Judge Priscilla Richman Owen ‘‘may have been tipping a hat’’ to Texas on how it could do a better job showing standing.

…

But Blackman said that while the record in the Mis- sissippi case ‘‘had virtually no basis to assess whether DACA was discretionary,’’ the record in the Texas case ‘‘has a trove of information about how DACA has been implemented.’’

‘‘On the merits, the 5th Circuit will have a solid re- cord to decide whether DAPA is in fact discretionary, or an ‘abdication’ of the law, as Judge Hanen found,’’ Blackman concluded.

Both Wydra and Blackman said that the issue is likely to land in the Supreme Court.

But Blackman predicted that if the court did agree to hear the case, arguments wouldn’t be heard until next fall.

Ben Wittes writes that the ISIS AUMF is now dead, and POTUS has won.

We see in this story why Obama was clever to play the AUMF debate the way he did, following the Syria AUMF debacle in 2013. Obama, recall, declared that he didn’t need a new AUMF, waited months to send up a draft, and then sent up a draft that contained authorities duplicative of those he already claimed. This wasn’t principled or good government, in any sense, but the result is that Obama has successfully turned congressional calcification and paralysis to his advantage.

The reason is that because of the way he postured the matter, nothing actually hinges for Obama on congressional passage of a new AUMF; the President, after all, claims the authority to do everything he wants to do against ISIL under current authorities. In fact, as I explained the other day, congressional failure to act arguably constitutes acquiescence to his broad claim of authority under the 2001 AUMF, since few of the members of Congress who are refusing to pass a new authorization are also claiming that the president lacks legal authority to take action. Many Republicans are actually complaining that he is not doing more than he is against ISIL.

Obama, in other words, put himself in a position in which congressional action would strengthen his hands and congressional inaction—always the likeliest outcome these days—would also strengthen his hand, or at least not weaken it.

It was a smart play on the part of White House lawyers. And lawmakers, true to form, are showing its tactical wisdom.

This is a point that Justice Scalia made in his Noel Canning dissent. In any long-term struggle between the President and Congress, the President will prevail due to the collective action problems of getting Congress to agree. These collective action problems are even stronger in our age of gridlock.

In the WSJ, Wisconsin Sen. Ron Johnson offers a prediction of how the President will react if the Court invalidates the IRS Rule in King v. Burwell.

If the court rules against him, President Obama’s response will be diabolically simple and highly effective. He will ask Congress to pass a one-sentence bill allowing the subsidies to flow through federal exchanges. At the same time he will offer governors a contract to convert their federal exchanges into state exchanges with a simple stroke of a pen.

He will also mobilize his massive national political operation. It is easy to imagine the advertising campaign that will promote his simple solutions and viciously attack any opposition. Heart-wrenching examples of Americans who have benefited from ObamaCare—and there are millions who have, through taxpayer subsidies—will flood every TV channel.

The mainstream news media will ignore or contest the stories of those millions who lost their coverage because of ObamaCare and who now find health insurance very unaffordable. Without an effective response from Republicans, there is little doubt that the crisis would allow President Obama to permanently cement ObamaCare in place.

I think this is exactly what will happen. And the President will veto anything that is not a one-sentence bill. As I’ve noted before, the Republicans will lose this game of chicken (see here, here, and here).