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I really, really dislike the song Imagine by John Lennon. The lyrics dream of a world with no “heaven,” no “countries,” no “religion,” and no “possession.” No thank you–I like building block of society each very much. A world without property would lead to rampant “hunger,” for it is “greed” that motivates the butcher and baker. I’m sure Justice Scalia agrees.

In remarks in New Orleans the Senior Associate Justice called his colleagues Dreamers who wish they lived in a world with a very different Constitution that the one we have, and make it so.

For instance, he gave the audience a text to reflect upon. He said those old enough to remember Robert F. Kennedy’s 1968 campaign for president might remember these words: “Some men see things as they are and say, ‘Why?’ I dream things that never were and say, ‘Why not?'”

Using that as a framework, Scalia characterized many of his court colleagues as dreamers who see things as they never were–and the U.S. Constitution as it really wasn’t.

The Times-Picayune add this commentary:

It is a lofty sentiment on its surface, Scalia said, but the implications are dark, particularly in the context of the original quote, which comes from a play by George Bernard Shaw.

In the play, Scalia said, the line was spoken by a serpent and addressed to a woman named Eve.

According to Bartelby, the original Shaw quote was slightly different than Kennedy’s version, which was actually first used by JFK before RFK, and later by Ted Kennedy.

AUTHOR: George Bernard Shaw (1856–1950)
QUOTATION: You see things; and you say “Why?” But I dream things that never were; and I say “Why not?”
ATTRIBUTION: GEORGE BERNARD SHAW, Back to Methuselah, act I, Selected Plays with Prefaces, vol. 2, p. 7 (1949). The serpent says these words to Eve.

President John F. Kennedy quoted these words in his address to the Irish Parliament, Dublin, June 28, 1963.—Public Papers of the Presidents of the United States: John F. Kennedy, 1963, p. 537.

Senator Robert F. Kennedy used a similar quotation as a theme of his 1968 campaign for the presidential nomination: “Some men see things as they are and say, why; I dream things that never were and say, why not.” Senator Edward M. Kennedy quoted these words of Robert Kennedy’s in his eulogy for his brother in 1968.—The New York Times, June 9, 1968, p. 56.

 

I regularly updated my CV with my latest accomplishments. Here are my new additions in 2015.

Published Articles

One of the best part of writing constitutional law exams is that I can spin counterfactuals, asking what if? In this question, Obergefell came out the other way, with the Court finding that the Constitution does not guarantee a right to same-sex marriage. Afterwards, Davis Kim, the clerk of Jefferson County, Kentucky, decides that Obergefell is not legitimate, like Dred Scott, and that Kentucky’s law limiting marriage to one man and one woman is unconstitutional. He distributes marriage licenses in contravention to state law. This tees up the issues of judicial supremacy and departmentalism in a way that forces the students to (perhaps) criticize Davis, who is taking a policy position they (likely) agree with. In addition, a student at the University of Louisville is denied entry to a “safe space” reserved for LGBT students, and is expelled for engaging in “hate speech” (reading a sentence from Justice Scalia’s Romer dissent). Enjoy the question!

Instructions: You are a law clerk for the Chief Justice of the Supreme Court of Kentucky. In the wake of the Supreme Court’s surprise decision in Obergefell finding that there was no right to same-sex marriage, the situation has quickly unraveled in Kentucky. Several cases have been appealed to the Supreme Court of Kentucky. In a memorandum of no more than 1,000 words, please address five questions concerning these consolidated cases.

—

It is June 26, 2015. In a stunning surprise, the Supreme Court affirmed the Sixth Circuit’s decision in Obergefell v. Hodges. Writing for a divided 5-4 Court, Justice Kennedy held that while the 14th Amendment’s Due Process Clause protects private intimate conduct, see Lawrence v. Texas, it does not extend to providing a positive government benefit such as a marriage license. Further, classifications based on sexual orientation were only quasi-suspect under the 14th Amendment’s equal protection clause, and the state had an important interest in encouraging opposite-sex couples who procreate to stay together for the benefit of their children. Such laws were not passed out of animus for gays and lesbians, but as a means to preserve this millennia-old social institution. As a result, Kentucky’s law limiting marriage to one man and one woman remains constitutional, and on the books.

In her vigorous dissent, Justice Ginsburg charged that the decision will be remembered alongside Dred Scott as one of the greatest injustices from the Supreme Court. She anticipated that the people would not accept this ruling. As usual, RBG’s notorious prediction quickly proved to be accurate.

Shortly after the decision was published, Davis Kim, the county clerk of Jefferson County, Kentucky announced that he would begin to issue marriage licenses to same-sex couples. In a detailed letter, Kim explained that the Supreme Court’s decision in Obergefell was illegitimate—citing Justice Ginsburg’s reference to Dred Scott—and an incorrect interpretation of the Fourteenth Amendment. Kim noted that based on his study of the Constitution, the Fourteenth Amendment guarantees same-sex couples the “dignity” of marriage equality. Kim stated bluntly, “The Supreme Court does not have a monopoly on interpreting the Constitution.” As a result, Kim disregarded Kentucky’s law limiting marriage to opposite-sex couples, and issued a marriage license to James and Arthur.

The Governor of Kentucky was furious with Kim and ordered him to stop issuing marriage licenses to same-sex couples. The Governor tells Kim to “Follow the law or resign.” Kim replies that he is following the law as he understands it—the U.S. Constitution—and as an elected official, he will not resign. He serves the people of Jefferson County, who support him. The Governor files suit in state court, seeking an injunction to halt the issuance of same-sex marriage licenses, and to force Kim to comply with the Kentucky law limiting marriage to opposite-sex couples. The trial court issues the injunction. Kim promptly appeals the case directly to the Supreme Court of Kentucky.

The Jefferson County Council supports Kim, and enacts the Jefferson Equal Rights Ordinance (JERO). The law prohibits discrimination against people on the basis of their sexual orientation or gender identity. James and Arthur apply as a married couple for public housing in Jefferson County. Even though their marriage license is void under Kentucky law, adhering to JERO, the County approves the application, and grants them a benefit reserved for married couples.

The people of Kentucky were very distraught by Kim’s actions, as well as JERO. Citizens collected enough signatures to place on the ballot a repeal of JERO. A massive advertising blitz begins urging people to vote “No,” and repeal JERO. Some commercials charged that JERO would allow men to enter women’s bathrooms. Other commercials charged that JERO and Kim’s decisions are contrary to valid state law, which clearly prohibits the recognition of any same-sex marriages. By a vote of 61%-39%, JERO is repealed. As a result, James and Arthur—no longer considered married—are evicted from their public housing. The couple files suit in state court, charging that the repeal of JERO violates the Fourteenth Amendment. (They do not bring any other claims under state or federal law). The trial court rules against the couple, finding that with JERO repealed, the eviction was required under Kentucky law. James and Arthur promptly appeal to the Supreme Court of Kentucky.

The repeal of JERO is felt strongly at the University of Louisville, a public university in Jefferson County. Members of the LGBT community on campus felt threatened by recent events. They request from the administration a “safe space” on campus where only lesbian, gay, bisexual, and transgender students can congregate—all others would be excluded. In this space, the students can talk amongst themselves to heal and discuss issues of concern to the LGBT community, without worrying that outsiders may marginalize their message. The President of the University grants their request, and designates a room in the Student Union as a “safe space.” He orders the Dean to stand outside the room, and exclude anyone who does not meet the criteria for admission.

Nino, a student who does not identify as LGBT, attempts to enter the “safe space.” The Dean refuses his entry. Nino exclaims that his request to enter was a “modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores.” Students who overhear Nino become very upset and offended. Irate, the Dean immediately expels Nino from the University for engaging in “hate speech.”

Nino files suit in state court with two claims. First, he argues that his exclusion from a place of public accommodation at the public university violates the Fourteenth Amendment’s equal protection clause. Second, Nino argues that his expulsion from the public university for “hate speech” violates his right to free speech under the First Amendment. (Nino does not bring any claims under state or federal law).

The trial court rules in Nino’s favor for the first count, finding that excluding him from the “safe space” was an unconstitutional classification in violation of the Fourteenth Amendment. However, for the latter count, the court upholds the suspension, finding that Nino’s outburst caused a substantial disruption in the student union. Nino and the University of Louisville promptly cross-appeal to the Supreme Court of Kentucky.

—

The Supreme Court of Kentucky has consolidated each of the appeals into a single case. In a memorandum of no more than 1,000 words, address the following five questions for the Chief Justice. Please keep in mind the Supreme Court’s recent decision in Obergefell, finding that bans on same-sex marriage violate neither the Due Process Clause nor the Equal Protection Clause of the 14th Amendment.

1. Address whether the repeal of JERO by the voters violated the 14^th Amendment.

2. Address whether the University’s exclusion of Nino from the “safe space” violated the 14th Amendment’s guarantee of equal protection.

3. Address whether the University’s expulsion of Nino for his “hate speech” violated the 1st Amendment’s guarantee of freedom of speech.

4. The Chief Justice (your boss) was deeply disappointed by the Supreme Court’s decision in Obergefell, and deeply believes that the 14^th Amendment guarantees a right to same-sex marriage. Further, the Chief admires Abraham Lincoln, a native son of Kentucky, and his views towards the Supreme Court’s finality about the Constitution. Offer the strongest arguments in favor of Kim’s position that he is not bound by the Supreme Court’s decision in Obergefell.

5. The Chief Justices poses an additional question to you, separate and apart from the previous question of why Davis is not bound by the Supreme Court’s ruling. He asks you, “Why do people obey courts?” Address that question, and keep in mind the separation of powers and the rule of law.

In November, Cass Sunstein wrote that the threat of terrorism warrants a reconsideration of the “clear and present danger” test. In short, the Islamic State’s proficient use of social media should make us revisit whether we are willing to protect other “extreme and hateful forms of speech.”

True, there may be value in even the most extreme and hateful forms of speech: At the very least, people can learn what other people believe. But it’s fair to ask whether that benefit might be dwarfed by the cost, if those forms of speech create a genuine risk of large numbers of deaths. …

In free societies, it’s almost always a bad idea to punish speech. But at the very least, the argument for the clear and present danger test is not quite as clear as it once was — and it might not be so well-suited to the present.

Sunstein acknowledges that Holme’s “clear and present danger” test was rejected by the Supreme Court decades ago–but that wasn’t his point of writing the article.

Two weeks ago in Slate, Eric Posner made the point far more forcefully. Not only should we reconsider these old doctrines, but we should enact a law to criminalize supporting ISIS on the internet.

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions.

Posner knows that his proposed law would be facially unconstitutional under modern doctrine.

The obvious problem with this law is that the courts could strike it down under the First Amendment. Under current doctrine, such an anti-propaganda law is unconstitutional because it would interfere with the right of people to receive or read political information—as would proposed laws that would require Internet companies such as Facebook and Twitter to remove ISIS-related propaganda from their websites.

But like Sunstein, making an argument under current law wasn’t his point in writing the article. Rather, he seeks to shift the debate. The Court’s current doctrine only goes back to the Warren Court. In a different time, with different Justices, the government had power more to Posner’s liking:

However, these rules go back only to the 1960s. Before then, in the United States, people could be punished for engaging in dangerous speech. The U.S. government prosecuted Nazi sympathizers during World War II, draft protesters during World War I, and Southern sympathizers in the Union during the Civil War. It’s common sense that when a country is embroiled in a war, it should counter propaganda that could populate a fifth column with recruits.* The pattern in American history—and, in the other democracies as well, even today—is that during times of national emergency, certain limits on speech will be tolerated.

We do not currently face a national emergency comparable to a world war, but anti-propaganda laws may nonetheless be warranted because of the unique challenge posed by ISIS’s sophisticated exploitation of modern technology.

To borrow from Jack Balkin’s taxonomy, both Sunstein and Posner are trying to shift arguments about censoring speech from “off the wall” to “on the wall.” The idea of criminalizing blog posts that support ISIS would be unthinkable under prevailing constitutional thought. But when scholars of the caliber of Posner and Sunstein put their names on it, it lends an air of legitimacy to the idea, and gets people thinking.

Invariably, scholars that disagree with the off-the-wall ideas respond–but in responding they add more heft to the proposal. An idiotic proposal isn’t even worth reply too. Geoff Stone replied to Sunstein and Posner at the Huffington Post.

Although I certainly understand the concerns driving these suggestions, it is essential that we resist the temptation to restrict our most fundamental freedoms in moment of panic. This is not to say that our nation’s security is not important or that preventing terrorist attacks is not a critical goal. But it is to say that this is not an appropriate way to protect ourselves. …. The long and short of it is this: In the free speech arena, we have struggled for more than two hundred years to get to the right place. We should not throw that wisdom away in a panic. If we do, we will once again deeply — and rightly — regret our actions.

But no matter how cogent Stone’s reply was–I think he gets it exactly right–it only draws more attention to the question.(During the early debates over the individual mandate, many scholars deliberately didn’t even address the arguments because they did not want to even acknowledge it was feasible). Additionally, Stone’s comments will allow Posner and Sunstein to further refine their arguments.

As top scholars begin to debate, the media takes notice. Yesterday, the New York Times published an article titled ISIS Influence on Web Prompts Second Thoughts on First Amendment.

It is one of the most hallowed precepts in modern constitutional law: Freedom of speech may not be curbed unless it poses a “clear and present danger” — an actual, imminent threat, not the mere advocacy of harmful acts or ideas.

But in response to the Islamic State’s success in grooming jihadists over the Internet, some legal scholars are asking whether it is time to reconsider that constitutional line. …

Recently, though, a few legal scholars, too, have engaged in what others call First Amendment heresy. What does clear and present danger mean when terrorists are provoking violence over the Internet? Should not the government have a way, they ask, to block messages that facilitate terrorist acts tomorrow, if not today?

How many is a “few”? I count two: only Sunstein and Posner have made this argument. But it only takes two distinguished thinkers to move an argument on the wall. The article goes on to quote dissenting views from David Post and Geoff Stone who discuss why the law should not revert to what it once was. But the author notes how these precedents were developed during another dangerous time–World War II. From the article in the Times, others will consider the Posner/Sunstein arguments reasonable, and think maybe Holmes had it right, and the Warren Court’s standards are for too risky.

Plus, limiting free speech also serves other agendas, such as criminalizing hate speech on the internet. The Times quotes Jeremy Waldron:

Jeremy Waldron, a professor of legal philosophy at New York University, has raised questions about the protection of hate speech under the First Amendment, with arguments paralleling those applied to terrorist websites by Mr. Sunstein and Mr. Posner.

“I argued, in the adjacent area of hate speech, that the clear and present danger test is inadequate,” Mr. Waldron said in an interview. “You can poison the atmosphere without an immediate danger, but sometimes, waiting for an imminent danger is waiting too long.”

“In the hallowed grounds of free speech, we have been a bit naïve about how threats spread,” he said.

So even advocates who may not agree with Sunstein and Posner on terrorism will ride the bandwagon to criminalize hate speech or revenge porn or other forms of unpopular speech. I mean, we are only censoring blog posts. It’s not like we are rounding up people based on their race or religion. (I could write a book about how Trump has been a master at putting insane ideas onto the wall).

The Supreme Court’s precedents on free speech, or any other doctrine are not fixed. Geoff Stone makes the point eloquently:

All these legal experts, including Mr. Posner, agree that if today’s Supreme Court considered his proposed law, it would be struck down — probably by a vote of nine to zero.

But if more Americans who were indoctrinated by jihadist videos engage in terrorist attacks, they also agree, the nation’s mood and the court’s thinking could change.

“Five years from now, who knows?” Mr. Stone said. “You can imagine a scenario in which things get so terrible that you start watering down the protections.”

“I don’t think we’re anywhere near that point now,” he said.

Justice Breyer’s optimism that Korematsu could not repeat itself is admirable, but not realistic. I do not take anything for granted, and recognize that when crisis hits, our legal system will take a vacation. Perversely, of the current Justices on the Court, the person most likely to uphold criminalization of speech is Breyer. So much for our “stronger tradition of civil liberties.”

Believe it or not, even in the year 2015, Adolf Hitler’s manifesto “Mein Kampf” is not available on the shelves in Germany. The first printing of the book will be available in 2016.

A few years ago, I had a German student in my constitutional law class. When we were studying Romer v. Evans, I was sure to ask her about the best translation for classic opening from Justice Scalia’s dissent, “The Court has mistaken a Kulturkampf for a fit of spite.” I asked, is this best understood as  “culture struggle.” I knew the word “Kampf,” from Mein Kampf (“My Struggle”). She replied she didn’t know, because they weren’t allowed to study that book.

I was blown away by that response.