Journal of Law and Policy VOLUME XXV 2016 NUMBER 1 .I Brooklyn Law School ESTABLISHED 1901 © 2016 Journal of Law and Policy Brooklyn, New York Journal of Law and Policy ISSN #1074-0635 PUBLICATION INFORMATION The Journalo f Law and Policy is published twice per year by Brooklyn Law School, 250 Joralemon Street, Brooklyn, NY 11201. You may contact the Journalb y fax at 718-780-0353, or by email at [email protected]. Please visit the Journal at Brooklyn Law School's scholarly repository, Brooklyn Works (brooklynworks.brooklaw.edu). SUBSCRIPTIONS Subscriptions are $20 per year and cover all issues in one volume. All subscriptions are now handled through subscription consolidators, such as Hein, EBSCO or others. If you have questions about any subscription issues, please email [email protected] or write to the Journals Coordinator, Brooklyn Law School, 250 Joralemon Street, Brooklyn, NY 11201. Please be sure to specify that you are inquiring about the Journal of Law and Policy. SINGLE AND BACK ISSUES Single and back issues may be ordered directly through William S. Hein & Co., Inc., 1285 Main Street, Buffalo, NY 14209-1987. The telephone number is (800)-828-7571. Back issues can also be found in electronic format on BrooklynWorks (brooklynworks.brooklaw.edu) and on HeinOnline at http://heinonline.org. MANUSCRIPTS The Journalo f Law and Policy will consider unsolicited manuscripts for publication. Submissions can be submitted electronically through ExpressO, emailed to the Journal( [email protected]), or mailed in duplicate hard copy format to Journal ofL aw and Policy Editor in Chief, Brooklyn Law School, 250 Joralemon Street, Brooklyn, NY 11201. Manuscripts must be typed, double spaced, and in Microsoft Word format, with footnotes rather than endnotes. Authors must include a copy of their current resume or curriculum vitae with the submission. Cover letters are encouraged. Manuscripts will not be returned, and become the property of the Journalo f Law and Policy. The Journal encourages the use of gender-neutral language. COPYRIGHT Unless otherwise expressly indicated, all material in the Journal ofL aw and Policy is © 2016 to its author(s). Except if otherwise stated on the first page of their article, each author has granted permission to the reader to reproduce the material herein for noncommercial use and with citations to the author and to the Journal ofL aw and Policy and to make derivative works under a Creative Commons Attribution- Non-Commercial 4.0 License. More information on this license is available at http://creativecommons.org/licenses/by-nc/4.0/legalcode. PRODUCTION The citations in the Journal ofL aw and Policy conform to The Bluebook: A Uniform System of Citation (20th ed. 2015). Style conforms to The Chicago Manual of Style (16th ed. 2010). The Journalo f Law and Policy is printed by The Sheridan Press in Hanover, PA. Cite as: J.L. & POL'Y. JOURNAL OF LAW & POLICY 2016-2017 EXECUTIVE & EDITORIAL BOARDS Editor-in-Chief MICHAEL C. PECORINI Managing Editor TIEN-KHA T. TRAN Executive Articles & Symposia Editors Executive Notes & Comments Editors PAUL G. CIVIDANES ALESSANDRA DECARLO NiCOLo G. TAORM1NA BRIDGET C. HART Business Manager Symposia Coordinator MATTHEW R. BUDOFSKY CHRISTIE R. McGuINNEss Associate Managing Editors Articles Editors Notes & Comments Editors MELISSA A. BEELITZ STEPHEN JOSEPH SETH R. GRANTIER REBECCA J. HABERMAN NICHOLAS J. PREVETE THOMAS C. O'CONNOR ELLIANA M. OPENSHAW R. DELANEY ROHAN RICHARD J. STELLA VINCENT J. PONTRELLO BRITTANY M. RUBINO JUDITH L. SWARTZ SEBASTIAN POPLAWSKI NICOLE M. VESCOVA SARAH E. TISCHBEIN NICHOLAS V. RIBAUDO JOSHUA A. WALTERS Associate Research Editors L. JOSH CORTAVARRIA TASHMIN RAHMAN HALEY P. TYNES Staff JAMES ALLEN ANNA HANKE AMANDA LIPARI SARA AMRI KYLE HUDAK MICHAEL LUONGO SEAN BEHEREC JAMIE KAUTZ MICHAEL MYONES AKEEM BENN JENNA KELLER JESSICA ORT ALANNA BRIFFA TARA KELLY MARIA ORTIZ DANNY DUONG FRANCES KENAJIAN CHRISTOPHER RASSI COLYN EPPES KRISTEN KENNEDY KATLYNE RYAN TYLER FLYNN ISIDORA KOUTSOULIAS ZACHARY SHAPIRO RYAN FOLEY DINA KUPFER ILANA SHARAN SAMUEL GLUZBERG JESSICA LAREDO ASHLEY THOMAS TYLER GRATTON SAMANTHA TUCKER MICHAEL HABER JESSICA WISHART Senior Staff ANDREW CITRON JONATHAN CONNERY ARDIS STRONG Faculty Advisor TATIANA K. PAWLOWSKI Library Advisor BRAD BORDEN KATHLEEN DARVIL JOURNAL OF LAW AND POLICY VOLUME 25 2016 No. 1 CONTENTS INTRODUCTION: THE PAST, PRESENT, AND FUTURE OF FREE SPEECH Joel M Go ra ........................................................................................................ 1 A Landmark Decision Turns Forty: A Conversation on Buckley v. Valeo Ni cholas W .A llard. ............................................................................................ 11 Jame s L. Bu ckley ............................................................................................ 15 Ira Gl asser. ................................................................................................... 2 1 Nicholas W. Allard, James L. Buckley, and Ira Glasser .............................. 31 Symposium: Free Speech Under Fire: The Futureo f the FirstA mendment Ni cholas W A llard. ...................................................................................... 43 Keynote Remarks by FloydAbrams .............................................................. 47 FREE SPEECH MATTERS: THE ROBERTS COURT AND THE FIRST AMENDMENT Joel M Go ra .................................................................................................. 63 WHERE'S THE FIRE B urt Ne uborne. ................................................................................................. 13 1 PROTECTING HATRED PRESERVES FREEDOM: WHY OFFENSIVE EXPRESSIONS COMMAND CONSTITUTIONAL PROTECTION A ndrew P. Na politano. .................................................................................... 161 FREEDOM OF SPEECH AND EQUALITY: DO WE HAVE TO CHOOSE? Na dine Strossen ............................................................................................... 185 THE ACADEMY, CAMPAIGN FINANCE, AND FREE SPEECH UNDER FIRE B radley A .Sm ith .............................................................................................. 227- JOURNAL OF LAW AND POLICY MONEY AND SPEECH: PRACTICAL PERSPECTIVES N icholas W .A llard. .......................................................................................... 255 PRODUCING DEMOCRATIC VIBRANCY K Sabeel Rahm an ............................................................................................ 273 PERSISTENT THREATS TO COMMERCIAL SPEECH JonathanH . A dler ............................................................................................ 289 NOTES & COMMENTS CELLPHONES AND THE FOURTH AMENDMENT: WHY CELLPHONE USERS HAVE A REASONABLE EXPECTATION OF PRIVACY IN THEIR LOCATION INFORMATION P aul Ci vidanes ................................................................................................. 3 17 NO DROP PROSECUTION & DOMESTIC VIOLENCE: SCREENING FOR COOPERATION IN THE CITY THAT NEVER SPEAKS A lessandraD e Carlo. ........................................................................................ 357 A BALANCING ACT FOR AMERICAN UNIVERSITIES: ANTIHARASSMENT POLICY V. FREEDOM OF SPEECH Br idge t Ha rt ..................................................................................................... 399 WHEN YOU COME TO A FORK IN THE ROAD, TAKE IT: UNIFYING THE SPLIT IN NEW YORK'S ANALYSIS OF IN-HOUSE ATTORNEY- CLIENT PRIVILEGE Thom as O 'Co nnor .......................................................................................... 437 PROTECTING HATRED PRESERVES FREEDOM: WHY OFFENSIVE EXPRESSIONS COMMAND CONSTITUTIONAL PROTECTION Andrew P. Napolitano* INTRODUCTION The First Amendment is not the guardian of taste. Instead, the Constitution of the United States wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence.' Although free speech can often lead to tenuous * Senior Judicial Analyst, Fox News Channel, 1998 to present; Distinguished Visiting Professor of Law, Brooklyn Law School, 2013 to present; Judge of the Superior Court of New Jersey, 1987 to 1995; Adjunct Professor of Law, Seton Hall Law School, 1989 to 2000; Visiting Assistant Professor of Law, Delaware (Widener) Law School, 1980 to 1981; A.B., Princeton University, 1972; J.D., University of Notre Dame, 1975. The author here records his gratitude to the staff and editors of the Brooklyn Law School Journal of Law and Policy for their efforts in putting together this article, and to his Research Fellow, Kimberly Sialiano, Esq., B.A., Lafayette College, 2009; J.D., Brooklyn Law School, 2014, for her invaluable contributions during its production. 1 See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). In this seminal First Amendment case, Clarence Brandenburg, a Klu Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for his speech at a Klan rally, in which he exclaimed, "[t]he Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." Id.a t 446. An audience member expressed his bitter hatred for African-Americans and Jews, stating, "Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel." Id.a t 447. In its holding, the Supreme Court struck down the Ohio statute, which made it a crime to "advocate .. .the duty, necessity, or propriety" of crime, sabotage, violence, or terrorism as a means of "accomplishing industrial or political reform" and to "voluntarily assemble" with any society, group or assemblage of persons "formed 'to teach or advocate the doctrines of 162 JOURNAL OF LA WAND POLICY relationships and uncomfortable debates, it must be defended unconditionally, especially when it is purposefully intended to be hateful or offensive. Too many politicians2 and lawmakers3 believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions they approve of. This is not so.4 What our Founders intended, and what we so desperately criminal syndicalism."' Id. at 448. In unanimously overturning the oppressive Ohio law, the Supreme Court created a distinct line between an "idea" (advocacy of violent or unlawful conduct) which is protected, and an "overt act" (intentional, imminent incitement of such conduct) which is not. Id. at 456. Essentially, Brandenburg stands for the proposition that all innocuous speech is absolutely protected; and all speech is innocuous when there is time for more speech to challenge it. 2 Take for example, President Trump, who as a candidate openly advocated during his campaign rallies that if elected President he would loosen libel laws, and place temporary bans on media outlets if they continued to ask questions he didn't like. Hadas Gold, Donald Trump: We're Going to 'Open Up' Libel Laws, POLITICO (Feb. 26, 2016, 2:31 PM), http.J/www.politico.com/blogs/on-media/ 2016/02/donald- truip-libel-laws-219866#ixzz4LNKYJpZm (quoting Donald Trump, "[I]f I win ... I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money .... So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected."). I See Peter Roff, Opinion, The First Amendment is Alive and Well, U.S. NEWS (Sept. 12, 2016, 3:30 PM), http://www.usnews.com/opinioniblogs/peter- roff/2014/09/12/the-first-amendment-is-alive-and-well-despite-harry'reids" efforts (explaining former Senator Harry Reid's (D-NV) attempt in 2014 to amend the First Amendment by "giving Congress the power to pass laws that determined what did and what did not constitute heretofore protected political speech," thereby giving Congress the power to determine what speech is protected under the First Amendment based on what it considers acceptable); see also George Will, Our Rights and His Wrongs, WASH. POST (May 11, 2006), http./ww.wchigtnposLcApdyn/cntefarfic2006/5/10/AR200 6051001787hmIl (discussing how the proposed McCain-Feingold campaign finance law abridges the freedom of speech by regulating the quantity, content, and timing of political speech, and the admission of Senator John McCain (R-AZ) that he would "rather have a clean government than one where... First Amendment rights are being respected"). 4 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,642 (1943) (discussing in the majority opinion, Justice Robert H. Jackson stated that, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can PROTECTING HA TRED PRESERVES FREEDOM need now, is a commitment to defend offensive, even hateful speech-the speech of the deniers, the affronting, and the politically extreme. It is only in this manner, by having a political system that allows for completely unencumbered freedom of speech, with no caveats or qualifications, that we can have open and lively public debates. Despite Justice Hugo Black's famous statement-"I read 'no law abridging' to mean no law abridging" 5-the courts and the federal government have incorrectly banished much speech to a place outside the protection of the First Amendment. As a result, the Supreme Court's decisions in several free speech cases have created what professor Laurence Tribe has called a "patchwork quilt of exceptions."6 For this reason, I argue below that our Founders intended the free speech principle to generate a presumption against restricting any speech, even hateful speech, and that we must harken back to this norm. Plain and simple, hatred is protected under the prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion"). ' Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring) (affirming the majority's holding that an ordinance requiring a book store owner to be strictly liable for possessing or selling obscene material-meaning the owner had to know the contents of every book in the store-violated First Amendment rights). Where the majority "invalidate[d] the ordinance solely because it penalizes the bookseller for mere possession," Justice Black advocated for a more decisive rule which reflected his view that "the First Amendment's language leaves no room for inference that abridgements of speech and press can be made just because they are slight... 'no law ... abridging' to mean no law abridging." Id. (emphasis in original). 6 See LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 188-92 (1985) (describing what he says is the Supreme Court's "inconsistent application of... First Amendment guarantees"); see also Andrew P. Napolitano, Whatever Happened to Freedom of Speech? A Defense of "State Interest of the Highest Order" as a Unifying Standardf or ErraticF irst Amendment Jurisprudence,2 9 SETON HALL L. REv. 1197, 1199 (1999) (describing the waning commitment by courts to act as the protectors of the speech liberties guaranteed to individuals and to the media by the First Amendment). It is of note, however, that in recent years the Supreme Court has refrained from creating additional categorical exceptions to the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 461 (2011) (holding in light of the "content, form, and context," the speech of several Westboro Baptist Church members picketing near the funeral of military service member involved matters of public concern and thus, no categorical exception to First Amendment protection for speech at or near a funeral was carved out). 164 JOURNAL OF LAW AND POLICY Constitution. We all have the right to hate and the right to express our hatred, offend others, and disagree with our elected officials.7 Without that principle, we are left with the government controlling our thoughts and punishing the thoughts that it hates and fears. Ultimately, neither our representatives nor judicial system should seek to shut down seemingly hateful speech, leaving it unchallenged.8 Instead, as is underscored in Brandenburg v. Ohio,9 we should be left to refute it with better ideas, thereby enabling all persons to enjoy an environment that allows for individuals to discover truth, achieve personal fulfillment, and participate more meaningfully in our republican form of government. Part I of this article provides background on the Founders' recognition that the freedom of speech is a right that all persons 7 It is important here to distinguish between hate speech, and hate crimes. The former can be loosely defined as speech that is an 'incitement to hatred' . . . primarily against [a person or] group of persons" based on group affiliation, such as race, gender, religion or ethnic origin. William B. Fisch, Hate Speech in the ConstitutionL aw of the United States, 50 AM. J. COMP. L. 463, 463 (2002). The difficulty in actually defining this type of speech, however, is discussed below in Section III.B. On the other hand, hate crimes have been defined as illegal activities (such as trespassing or assault) that are "motivated by hatred based on group affiliation." Richard J. Williams, Jr., Burning Crosses And Blazing Words: Hate Speech and the Supreme Court's Free Speech Clause Jurisprudence,5 SETON HALL CONST. L.J. 609, 652 (1995) (citing Wisconsin v. Mitchell, 508 U.S. 476 (1993)). A hate crime statute may "criminalize[] manifested violence toward a person, persons or property based on bias toward race, religion, gender or some other group characteristic," including defacement or destruction of property, and/or provide penalty enhancements. Id. at 637. 8 "Only in extremely limited circumstances-such as speech that is intended to incite a riot--can the government legally apply censorship to our speech." Michael Schaus, Judge Nap: NAACP's Call to Prosecute-HateG roups Violates First Amendment - Hate Speech Is Protected, BIzPACREVIEW (June 23, 2015) http://www.bizpacreview.com/2015/06/23/judge-nap-hnaacps-call-to-prosecute- hate-groups-violates-first-amendment-hate-speech-is-protected- 216986?. 9 See generally Brandenburg v. Ohio, 395 U.S. 444 (1969) (discussing how the passage of time for speech which challenges the hate speech dissipates the force of the hatred); see also Steven G. Gey, The BradenburgP aradigma nd Other First Amendments, 12 U. PA. J. CONST. L. 971, 978 (2010) (explaining that "all speakers will be immune from legal liability unless the violent or illegal actions that they advocate occur precisely at the time of the speech. Any lapse in time between speech and action frees the speaker from the legal consequences of his or her advocacy"). PROTECTING HATRED PRESERVES FREEDOM possess by virtue of our humanity, and not merely a right provided by the U.S. government. Part II defends the absolute right to free speech based on three different, yet related, philosophical ideals. Part III argues that the government should not make any effort to censor "hate speech" because such censorship would vest the government with the ability to determine what should and should not be considered "hate speech." Since the U.S. government did not create the right to free speech, it cannot take away what it did not give. I. "THE" FREEDOM OF SPEECH: THE FOUNDING FATHERS EMPHASIS ON OUR NATURAL, PREEXISTING RIGHT OF EXPRESSION I have consistently argued that the text of the First Amendment speaks for itself: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech."10 Such language reveals that the authors of the Amendment recognized that the freedom of speech was a preexisting right, and thus comes from some source other than the Constitution or the government it created. The Amendment would convey an ambiguous meaning about the preexistence of the right of free speech were freedom not modified by "the." This pre- Constitutional meaning cannot, however, be resolved by reference to the text alone; instead we must look to historical documents to help discern how free speech was understood in the early American republic, and evaluate the theory of natural rights. The Framers' reference to the freedom of speech implies that free speech was not a new concept, but a pre-political right that thus predated the government. That source of law emanates from human nature, whether you believe in an all knowing and all loving God or not. Stated differently, under the Natural Law theory, because all human beings individually yearn to be free from artificial restraint, our freedoms, including that of free speech, stem from our very humanity.11 Since Natural Law posits that our right to freedom of 10 U.S. CONST. amend. I.; see ANDREW P. NAPOLITANO, LIES THE GOVERNMENT TOLD YOU: MYTH, POWER, AND DECEPTION IN AMERICAN HISTORY 77-78 (20 10). 11 ANDREW P. NAPOLITANO, CONSTITUTIONAL CHAOS: WHAT HAPPENS WHEN THE GOVERNMENT BREAKS ITS OWN LAWS xii (2004) [hereinafter