Madison's Music (36 page)

36
. Although the Court rejected a right to reply to press attacks in
Miami Herald Publishing Company v. Tornillo
, 418 U.S. 241 (1974), the Court was initially receptive to government efforts to provide dissenting voices with access to the broadcast media.
Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969), upholding “fairness doctrine”;
FCC v. National Citizens Committee for Broadcasting
, 436 U.S. 775 (1978), upholding ban on cross-ownership of newspaper and TV station in same market. See generally
Associated Press v. United States,
326 U.S. 1 (1945), applying antitrust laws to media settings. After repeal of the fairness doctrine by the FCC, the Court rejected a First Amendment right of access to broadcast media.
CBS v. Democratic National Committee
, 412 U. S. 94 (1973). The autonomy of broadcasters was upheld in
FCC v. League of Women Voters
, 468 U.S. 364 (1984), invalidating ban on editorials by public TV stations;
Arkansas Educational Television Comm'n v. Forbes
, 523 U.S. 666 (1998), upholding exclusion of candidate from debate on public TV;
Turner Broadcasting v. FCC
, 512 U.S. 622 (1994) (
Turner
I), rejecting application of
Red Lion
to cable broadcasting. The chaotic state of current law on media diversity is reflected in
Prometheus Radio Project v. FCC
, 373 F.3d 372 (3d Cir. 2004);
Sinclair Broadcasting, Inc. v. FCC
, 284 F.3d 148 (D.C. Cir. 2002); and
Fox Television Stations, Inc. v. FCC
, 280 F.3d 1027 (D.C. Cir. 2002). Each case rejects an FCC rule on media ownership.

37
.
RAV v. City of St. Paul
, 505 U.S. 377 (1992), invalidating conviction for cross burning because statute overbroad;
Virginia v. Black
, 538 U.S. 343 (2003), invalidating convictions for cross burning in absence of proof beyond reasonable doubt of intent to intimidate.

38
.
Connick v. Myers
, 461 U.S. 138 (1983), limiting freedom to circulate internal criticism at work;
Waters v. Churchill
, 511 U.S. 661 (1994), upholding dismissal based on employer assessment of disruptive nature;
Garcetti v. Ceballos
, 543 U.S. 1186 (2005), upholding dismissal of assistant DA for internal criticism of failure to respond to misrepresentations in search warrant.

39
.
Bethel School District v. Fraser
, 478 U.S. 675 (1986), upholding discipline for student nominating speech with sexual innuendos;
Hazelwood School District v. Kuhlmeier
, 484 U.S. 260 (1988), upholding principal's editorial control over official student newspaper;
Morse v. Frederick,
551 U.S. 393 (2007), upholding discipline for displaying banner with drug connotations.

40
.
Hazelwood v. Kuhlmeier
, 484 U.S. 260 (1988);
Morse v. Frederick
, 551 U.S. 393 (2007).

41
.
Knox v. SEIU
, 132 S. Ct. 2277 (2012), five members of Court
in dicta
suggest that employees must opt in to public union decision to use mandatory dues for political purposes; four justices disagree.

42
.
Holder v. Humanitarian Law Project
, 561 U.S. 1 (2010).

43
.
Citizens United v. FEC
, 558 U.S. 50, (2010), Stevens, J., dissenting, joined by Justices Ginsburg, Breyer, and Kagan.

44
.
Arizona Free Enterprise Freedom Club PAC v. Bennett
, 131 S. Ct. 2806 (2011), invalidating Arizona matching-fund law 5–4.

45
.
McCutcheon v. FEC
, 134 S. Ct. 1434 (2014).

46
. Article I, section 10 forbids any state from passing a “Law impairing the Obligation of Contracts.” The Fifth and Fourteenth Amendments forbid both federal
and state governments from depriving a “person” of “life, liberty, or property without due process of law.” The Fifth Amendment also provides that “private property [shall not] be taken for public use, without just compensation.”

47
.
Virginia Pharmacy Board v. Virginia Citizens Consumer Council
, 425 U.S. 748 (1976) (protecting advertising about drug pricing);
Central Hudson Gas v. Public Services Comm'n
, 447 U.S. 557 (1980) (declining to protect advertising promoting unlawful activities).

48
. Elena Kagan, “Private Speech, Public Purpose: The Role of Government Motive in Free Speech Doctrine,”
University of Chicago Law Review
63 (1996): 413.

49
.
New York Times v. United States
, 403 U.S. 713 (1971).

50
.
Gooding v. Wilson
, 405 U.S. 518 (1972);
Coates v. City of Cincinnati
, 402 U.S. 611 (1971).

51
.
Smith v. Goguen
, 415 U.S. 566 (1974).

52
. Burt Neuborne, “The Gravitational Pull of Race on the Warren Court,”
Supreme Court Review
2010, no. 1 (2010): 59, 77.

53
.
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue
, 460 U.S. 575 (1983).

54
.
Freedman v. Maryland
, 380 U.S. 51 (1965).

55
.
Turner Broadcasting System v. FCC
, 520 U.S. 180 (1997) (Turner II).

56
.
Cox v. New Hampshire
, 312 U.S. 569 (1941).

57
. For a useful summary of academic articles on the Occupy Wall Street movement, see the forum established by the
Berkeley Journal of Sociology
, “Understanding the Occupy Movement: Perspectives from the Social Sciences,”
bjsonline.org/2011/12/understanding-the-occupy-movement-perspectives-from-the-social-sciences
. No summary of the legal confrontations appears to exist, although New York City settled several cases arising out of violent confrontations between the police and the demonstrators.

58
.
New York Times v. Sullivan
, 376 U.S. 254 (1964).

8. Divine Madness

1
. The textual evolution of the First Amendment is discussed in Chapter 10.

2
.
United States v. Seeger
, 380 U.S. 163 (1965);
Welsh v. United States
, 398 U.S. 333 (1970).

3
. Justice Harlan had joined the majority in
Seeger
in merely construing the statute to provide the defendant with conscientious-objector status despite his failure to believe in a Supreme Being. In his influential concurrence in
Welsh
, however, Justice Harlan repudiated his reading of the statute in
Seeger
and ruled that the Constitution required recognition of claims of secular conscience in both cases. It is Justice Harlan's concurring opinion that we remember.

4
.
Employment Division v. Smith
, 494 U.S. 872 (1990).

5
.
Prince v. Massachusetts
, 321 U.S. 158 (1944), child labor laws.

6
.
Gillette v. United States
, 401 U.S. 437 (1971), military conscription.

7
.
Jimmy Swaggert Ministries v. Board of Equalization
, 493 U.S. 378 (1990), sales tax;
United States v. Lee
, 455 U.S. 252 (1982), Social Security taxes.

8
.
Burwell v. Hobby Lobby
, 2014 WL 2921709.

9
.
Corporation of the Presiding Bishop v. Amos
, 483 U.S. 327 (1987).

10
. In observant Judaism, the
Shabbos goy
is the good Samaritan who comes into your home and lights the furnace on the Sabbath, when observant Jews are prohibited from doing so. When I was growing up in Queens, several wonderful non-Jewish neighbors (who happened to be black) made sure that nearby elderly observant Jews stayed warm on cold Saturday afternoons. I loved them for it, and tutored their kids.

11
.
Thornton v. Caldor, Inc.
, 472 U.S. 703 (1985).

12
.
Marsh v. Chambers
, 463 U.S. 783 (1983).

13
.
Town of Greece v. Galloway
, 134 S. Ct. 1811 (2014).

14
.
Lyng v. Northwest Indian Cemetery Protective Ass'n
, 485 U.S. 439 (1988) (allowing road through Indian burial ground);
O'Lone v. Estate of Shabazz
, 482 U.S. 342 (1987) (rejecting prisoner's petition);
Goldman v. Weinberger
, 475 U.S. 503 (1983) (enforcing military headgear rule).

15
.
Witters v. Department of Services for the Blind
, 474 U.S. 481 (1986);
Zobrest v. Catalina Foothills School District
, 509 U.S. 1 (1993);
Agostini v. Felton
, 521 U.S. 203 (1997);
Mitchell v. Helms
, 530 U.S. 793 (2000);
Zelman v. Simmons-Harris
, 536 U.S. 639 (2002).

16
.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
, 508 U.S. 520 (1993).

17
.
Engel v. Vitale
, 370 U.S. 421 (1962);
Abington School District v. Schempp
, 374 U.S. 203 (1963);
Wallace v. Jaffree
, 472 U.S. 38 (1985);
Lee v. Weisman
, 505 U.S. 577 (1992);
Stone v. Graham
, 449 U.S. 39 (1980);
Epperson v. Arkansas
, 393 U.S. 97 (1968);
Edwards v. Aguillard
, 482 U.S. 578 (1987).

18
.
Reynolds v. United States
, 98 U.S. 145 (1878).

9. The Costs of Ignoring Madison's Music

1
.
Marbury v. Madison
, 5 U.S. 137 (1803).

2
. The three earlier presidential elections had been won by Federalists. The presidency passed to the Jeffersonian Republicans in 1800, and stayed there until the election of John Quincy Adams by the House of Representatives in 1824.

3
. Article II, section 3, clause 2 originally provided: “In every Case, after the Choice of the President, the Person having the greatest number of Votes of the Electors shall be Vice President.”

4
. There was a problem with Georgia's four electoral votes. While there is no doubt that the Georgia electors actually voted for Jefferson and Burr, the votes were recorded in a technically defective certificate that failed to follow the prescribed formula. Jefferson, presiding over the electoral count as vice president, ignored the procedural defect and counted the Georgia electoral votes for himself. If the four Georgia votes had been disqualified on a technicality, the electoral vote would have been 69–65 in favor of Jefferson, throwing the election into the House of Representatives because no candidate would have obtained the necessary majority of 70. Because Jefferson eventually won election in the House anyway, the counting of the Georgia votes probably did not affect the outcome of the presidential election.

5
. The admission of Tennessee in 1796 had brought the number of states in 1800 to sixteen.

6
. Georgia's other Federalist member of Congress, James Jones, had died on January 11, 1801.

7
. The first section of the Judiciary Act of 1789 (Act of September 24, 1789, 1 Stat. 73) set the number of Supreme Court justices at six—a chief justice and five associate justices.

8
. The practice of Supreme Court circuit riding is discussed in Joshua Glick, “Comment: On the Road: The Supreme Court and the History of Circuit Riding,”
Cardozo Law Review
24, no. 4 (2003): 1753.

9
. Ibid.

10
. It is possible that Ellsworth's resignation letter dated September 30, 1801, was occasioned by ill health, not by a desire to give Adams the chance to appoint a successor. If I were cross-examining, though, I'd want to know why a letter dated September 30 was not received by Adams until December 15. Backdating is always a possibility. Moreover, although the formal electoral balloting was not decided until December 1801, when South Carolina gave its eight electoral votes to Jefferson, it was clear as early as April 1801 that New York would support Jefferson, making him the likely winner.

11
. Despite never having served as a judge, Marshall enjoyed a reputation as an excellent lawyer. In 1789, Washington had offered him the post of U.S. attorney for Virginia. Marshall declined. In 1795 Washington had asked him, at the age of thirty-nine, to serve as attorney general. When Marshall declined for financial reasons, the job went to Charles Lee, who served as counsel in
Marbury
. In 1797, Marshall accepted Adams's nomination as one of three commissioners to France. He was expelled from France as part of the XYZ Affair, burnishing his political reputation in the United States. See William Stinchcombe,
The XYZ Affair
(1980), describing Talleyrand's unsuccessful effort to extort a bribe from the United States commissioners and their expulsion from France upon refusing to pay. In 1798, Marshall, again moved by financial considerations, declined an offer by Adams of a nomination as an associate justice of the Supreme Court, recommending Bushrod Washington instead. In 1799, Marshall reluctantly agreed to run for the House, winning a close election largely on the basis of his popularity as a result of the XYZ Affair. Marshall served as Federalist leader in the House until Adams nominated him as secretary of war in early May 1800. When Marshall refused the post because of financial considerations, Adams renominated him as secretary of state one week later, with a salary large enough to permit Marshall to give up his law practice. Nine months later, Adams nominated Marshall as the fourth chief justice.