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Justice Black’s Last Opinion
“The Post,” Stephen Spielberg’s film that dramatizes Washington Post publisher Katherine Graham’s “bet the newspaper” decision to publish the Pentagon Papers while The New York Times was stymied by a federal court’s injunction, has brought renewed attention to the Supreme Court’s 6-3 decision that ultimately vindicated both newspapers’ actions. The movie pays brief but particular attention to Justice Hugo Black’s rhetorically vivid concurring opinion, in which he not only praised the newspapers for having the temerity to expose the government’s perfidy but also beautifully summarized, in just a few hundred words, the history and philosophical underpinnings of the First Amendment’s guaranty of freedom of the press. At the time, neither he nor anyone else knew that the opinion not only would be his most renowned, but also his last.
The most frequently quoted portion of Justice Black’s concurrence is this paragraph:
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
As it happened, one of Justice Black’s three law clerks during the 1970-71 Supreme Court term was my University of North Carolina undergraduate classmate, close friend, and long-time law partner Bob Spearman, who had attended the Yale Law School after spending two years at Oxford as a Rhodes Scholar. His fellow clerks were Robert B. McCaw from Virginia and John Harmon, a Statesville, N.C. native and Duke law grad who, like Bob, had been a Morehead Scholar at Chapel Hill.
When the Pentagon Papers case unfolded in June of 1971 I was out of the country serving in the U.S. Navy. As a self-identified “First Amendment junkie,” I was riveted by the drama, but I had no access to U.S. radio or television, so in those pre-internet days I monitored developments in the case by reading day-old editions of The New York Times and The Boston Globe flown in. Although I was delighted by the outcome, I was not steeped in either the underlying facts of the case or its procedural history.
After being discharged from the Navy early in 1973 I joined Sanford Cannon Adams & McCullough, the Raleigh law firm where Bob Spearman and I would practice law alongside each other for the next 15 years. Early on I acquired a copy of The Papers & the Papers, Sanford Ungar’s detailed history of the case. Ungar had worked quickly; his book was published less than a year after the Supreme Court’s decision and prior to either of the criminal trials in which the government attempted, unsuccessfully, to convict Daniel Ellsberg and Anthony Russo of having violated the Espionage Act by leaking the papers to the papers. (The first trial, in 1972, ended in a mistrial when it was disclosed that the government had wiretapped a conversation between one of the defendants and his lawyer. During the second trial, in 1973, the presiding judge, William Byrne, dismissed all charges after he learned that White House operatives G. Gordon Liddy and Howard Hunt had burglarized the offices of Ellsberg’s psychiatrist to obtain his files relating to Ellsberg.)
I shared The Papers & the Papers with Bob, who naturally took particular interest in Ungar’s account of the Supreme Court arguments and the Court’s decision. Professor Alexander Bickel, who had been Bob’s constitutional law professor at Yale, had argued the case for The New York Times. As Ungar reported, and as the transcript of the oral arguments clearly shows, Justice Potter Stewart pressed Bickel into conceding that the First Amendment’s prohibition against “prior restraints” on the press was not absolute. The transcript also shows that Justice Black expressed dismay that Bickel was apparently reading the First Amendment to mean that Congress could make some laws abridging freedom of the press. “That,” he said, “is a very strange argument for the Times to be making.” In an unpublished essay that he shared with me, Bob wrote that Justice Black thought “Bickel’s argument was not a sufficiently vigorous defense of a free press, and complained that the Times had not found a lawyer who really believed in the First Amendment.”
Bob also revealed a particularly interesting detail about Justice Black’s eloquent concurring opinion. The majority of it, he said, came about in the usual way: i.e., it was drafted, rewritten and polished by the law clerks based on guidance and direction from the justice. After the “final” draft was printed by the Court’s staff, the clerks drove it to Justice Black’s house in Alexandria, Virginia for his review and approval. After reading through it he took out his pen and, in the margin of the printed draft, wrote out in longhand the entire paragraph that is quoted above. Although no one could have known it at the time, his last acts as a justice of the Supreme Court were to handwrite his ringing defense of the press and to draw an arrow showing where he wanted the language inserted in the draft.
Bob Spearman died in early December of 2017 from a combination of dementia and Parkinson’s disease. After seeing “The Post,” I undertook to verify that what Bob had told me about Justice Black’s handiwork by recounting his story to John Harmon. Here is John’s response:
You have it right. Bob and Bob McCaw and I often laughed about the fact that the portions of Justice Black’s opinions that were quoted in the press inevitably were the portions that he wrote himself, in long hand, in the margins of drafts he was considering. Lest law clerks ever be tempted to elevate their own importance, we must remember that every word of every opinion signed by Justice Black was his and his alone regardless of who performed the task of putting those words on paper. Justice Black well understood that the wording of opinions was immensely important especially when defending fundamental constitutional rights. And no right was more fundamental to Justice Black than the First Amendment right to free speech. Yes, Hugh, you got it right. Those words were Justice Black’s, all those words.
Did You Get Your Commencent Bible?
Author’s Note: This article, like the previous one, was written in connection with the 50-year commencement reunion of the UNC Class of 1965. A slightly different version was published in the May/June 2015 issue of the “Carolina Alumni Review.”
Did you get your Commencement Bible?
Do you still have it? (We won’t ask if you have read it.)
Beginning with the commencement of 1842, UNC presented members of the graduating class with Bibles. According to John Sanders, former director of the Institute of Government, “The practice continued until the closing of the University in 1868, apparently was not resumed upon the reopening of the University in 1875, and was terminated formally by action of the faculty on June 1, 1877.” On the motion of the Reverend A.D. Betts, a Methodist minister and UNC trustee, the Board of Trustees ordered the practice resumed in 1880, and it was still the order of the day when we graduated 50 years ago. At our commencement everyone receiving a B.A. or B.S. degree was offered a choice of three bibles: the one version (the “King James”) for Protestants, another for Catholics, and an Old Testament edition for Jewish students. If you received one of the approximately 3,000 bibles distributed in connection with our commencement, you found in it signed by the Chancellor saying, “This Holy Bible is presented to you by your Alma Mater on the occasion of your graduation.”
Commencement bibles were free to the graduates. In 1971, Chancellor Ferebee Taylor responded to questions about the practice by appointing a “Subcommittee of Inquiry on the Distribution of Bibles to Graduates of the University of North Carolina at Chapel Hill” chaired by Professor Sanders. The subcommittee was asked to review the history of the practice; to determine whether State funds were used to defray the cost of buying and distributing the bibles, which was then around $18,000 a year; and make a recommendation as to whether their distribution should be continued. The subcommittee’s report that was submitted in March of 1972 concluded that
The way the University’s books are kept, one cannot trace the payment for the purchase pf Bibles or their distribution back to any particular fee or other University receipt. The collections from the general academic fee, state general fund appropriations, and other receipt all go into a fund from which the Bible purchases are made.
Based on the subcommittee’s conclusion that the practice, if challenged, would likely be found to violate the First Amendment’s “Establishment Clause,” the report urged the University not wait until some citizen sued and forced an end to the practice but instead should discontinue it voluntarily as legally insupportable. Legal considerations aside, the report also included this cogent observation:
However fitting the practice of giving Bibles to graduates in 1842 in the cultural setting of the time and place, we deem it not to be nearly so meaningful in this University today. We . . . do not conceive that a discontinuation of the practice would in any discernable way impair the moral and spiritual development of the graduates of the University. To the extent that the stimulation of such development is the University’s responsibility, our obligation must be met in the span of two to four years that the student spends on this campus; unmet then, it cannot be redeemed by mailing a five dollar Bible to his last known address.
The report recommended that the practice of giving Bibles to graduates at commencement be discontinued without fanfare, and it was.
How Jesse Helms and the Speaker Ban Law Changed My Life
Author’s Note: This article was written in connection with the 50-year reunion of the 1965 graduating class at the University of North Carolina at Chapel Hill.
When you look back over 50 years to your time at UNC, what shaped your life more – the courses you took and the books you read, or the people and events you encountered outside the classroom?
In my case, the answer is clear: I was privileged to have many great teachers at Chapel Hill, but I became a First Amendment lawyer because of Jesse Helms and the Speaker Ban Law.
I will never forget professors like O.B. Hardison, Andy Scott, Clifford Lyons, J. O. Bailey, Walter Spearman and Peter Walker, but my most important influences were people like UNC President Bill Friday, Chancellor William Aycock, Campus “Y” director Anne Queen and UNC alumnus McNeill Smith, all of whom I got to know well because of our shared antipathy toward the Speaker Ban Law.
Here’s my story.
When Dr. Martin Luther King, Jr. and other civil rights leaders organized anti-segregation boycotts and demonstrations in Birmingham, Alabama in May of 1963, T.E. “Bull” Connor, Birmingham’s Commissioner of Public Safety, responded by ordering police and firemen to turn police dogs and high-pressure fire hoses on the demonstrators, many of whom were children. The shocking images of the violent confrontations that television brought into my fraternity’s chapter room hit me in my gut. For me – and, I now know, for many other white southerners – those images caused me to think seriously for the first time about something that up until then I had more or less taken for granted: racial segregation.
I was not the only North Carolina student who was moved by the events in Birmingham. Galvanized by the images of youngsters fleeing from fire hoses and police dogs, students from Shaw University staged sit-ins at Raleigh theaters and restaurants, protested at the Sir Walter Hotel where most members of the General Assembly stayed during the legislative session, and swarmed over the grounds of the Governor’s Mansion while Governor Terry Sanford hosted the annual North Carolina Symphony Ball.
Although Governor Sanford defused the symphony protest by appearing on the south porch of the mansion and offering to meet with the protesters, some other prominent citizens reacted very differently. Jesse Helms, who was then an on-air editorialist for WRAL-TV, saw the protests as evidence of Communist influence, especially at colleges and universities. In June he praised the Ohio legislature for proposing a bill to restrict speakers at their universities, suggesting that it “should also provide a lesson for the rest of us.” Four days later, on the last day of the legislative session, the General Assembly leaders suspended the rules and rushed through what became known as “the Speaker Ban Law,” which prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities.
I wasn’t even aware of the law until shortly before I returned to Chapel Hill for my junior year, and even then it didn’t galvanize my attention like the great March on Washington, which occurred on August 28, or President Kennedy’s assassination on November 22. By the spring of 1964, however, the Speaker Ban was very much on my mind. Thanks to firm but measured opposition arguments advanced by Chancellor Aycock and President Friday, I had come to understand that the law posed a serious political and a philosophical threat to the University and the concept of academic freedom. I also saw it as a personal insult; did Jesse Helms and his allies really think that I and my fellow students were so naïve and gullible that we could not be permitted to hear a communist speaker, lest we enlist in the Red Army?
The Speaker Ban loomed like a cloud over our senior year at Chapel Hill. As co-editor of The Daily Tar Heel I wrote editorials decrying the law. More importantly, my position drew me into a wide and varied circle of students, faculty, administrators, alumni and others whose common goal was to remove the cloud from UNC’s academic reputation. The moral and intellectual leaders of the group were President Friday and Student Body President Bob Spearman. Anne Queen, who hosted frequent Sunday brunches at which the conversation was fueled by sherry and Bloody Mary’s, was our de facto social chairman; the regular attendees at her soirees included my hometown state senator, Ralph Scott; Joel Fleishman, Governor Sanford’s administrative assistant; UNC law professor Dan Pollitt; Duke law professor William Van Alstyne; and UNC alumnus Jim Exum, who was then practicing law in Greensboro.
In addition to exposing me to such heady conversation and company, the Speaker Ban also led, unexpectedly, to my long friendship with Charles Kuralt. We met when Charles, who had been editor of The Daily Tar Heel in 1954, came to Chapel Hill in the summer of 1964 to do a story about the law for “The CBS Evening News with Walter Cronkite” and we stayed in touch thereafter. Thanks to the Speaker Ban, my wife and I have fond memories of sitting in on the broadcast of “Sunday Morning” followed by gracious lunches with Charles afterward.
The Speaker Ban also led to my acquaintance with J. McNeill (“Mac”) Smith, the Greensboro lawyer and former DTH editor who, with Professors Pollitt and Van Alstyne, filed the federal lawsuit that eventually resulted in the Speaker Ban being declared unconstitutional. During 1963 and 1964 President Friday, Chancellor Aycock and others, including the Consolidated University’s Board of Trustees, had tried diligently, but unsuccessfully, to persuade the General Assembly to repeal or amend the law. By the spring of 1965 it had become apparent to many opponents of the ban that our only hope lay in a federal lawsuit, which Mac Smith volunteered to handle pro bono.
Although I and other student leaders were willing to be named as plaintiffs, two factors delayed the suit. Many of the would-be plaintiffs were graduating in June; more importantly, the lawyers worried that the lawsuit might be dismissed for lack of “standing” unless the students directly challenged the law by inviting one or more prohibited speakers to the campus and having them turned away.
Shortly after we graduated in June the situation was further complicated by the General Assembly’s creation of a special commission to review the law. President Friday and others felt that the ban’s opponents should give the group, which was known as “the Britt Commission,” the opportunity to do its work. In the end the commission recommended, and the General Assembly decided, that the law should be amended to make the University’s trustees and administrators accountable for enforcing a “speaker policy” that gave lip service to a diversity of viewpoints while simultaneously mandating that campus talks by anyone whose appearance would have been prohibited by the law should be “infrequent” and “rare.” By then I was in law school, Bob Spearman was a Rhodes Scholar at Oxford, and the torch had passed to another cohort of student leaders. In 1966, Student Body President Paul Dickson, DTH editor Ernie McCrary and others forced the issue by inviting Frank Wilkinson and Herbert Aptheker to speak on campus and filing suit when their appearances were forbidden by Chancellor Carlyle Sitterson and the UNC Board of Trustees.
Personally, I would have liked to have been a plaintiff in the Speaker Ban lawsuit, but in the end the most important thing was that in their misguided attempt to curtail UNC’s academic freedom and my First Amendment rights, Jesse Helms and his friends inadvertently provided me with the opportunity to understand and treasure them more deeply, to meet Mac Smith and others who became my friends and mentors, and to find my calling.
A Surprise Honor Named for One of My Heroes
On January 29, 2015 I was surprised and flattered to find myself the recipient of the J. McNeill Smith Award from the North Carolina Bar Association’s Constitutional Rights Section. As I said in the following acceptance remarks, this award is particularly special to me because I was fortunate enough to know the great lawyer for whom it is named.
“Mac” Smith is one of my heroes. I met him in Chapel Hill in 1964 or 1965 when, as co-editor of The Daily Tar Heel, I was involved with a group of students, faculty, administrators, alumni and friends of the University of North Carolina who were actively working to repeal or overturn the notorious Speaker Ban Law. Mac had been editor of the DTH in 1938, so we made a connection.
As most of you know, the Speaker Ban prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities. It was passed in 1963, primarily as the result of saber-rattling by Jesse Helms, who was then an editorialist for WRAL-TV. Helms and his allies saw student participation in civil rights protests as evidence of “communist influence” at colleges and universities, especially UNC.
Mac and other lawyers, including UNC law professor Dan Pollitt and Duke law professor William Van Alstyne, were thinking seriously about challenging the law in federal court as early as 1964. Together with other student leaders, I was willing – indeed eager — to be a plaintiff, but the passage of time and events – including the General Assembly’s amendment of the law in 1965 to make the University’s trustees and administrators responsible for prohibiting campus appearances by “communists” and other anti-American speakers – resulted in delay. Ironically, that amendment made it necessary for any suit challenging the Speaker Ban to be filed against Mac’s own alma mater and its leaders.
It was not until 1966 that Mac and Professors Pollitt and Van Alstyne filed Dickson v. Sitterson, the federal lawsuit that eventually resulted in the Speaker Ban Law being declared unconstitutional; consequently, I missed out on the opportunity to be a plaintiff. That honor fell instead to Ernie McCrary, who had succeeded to the editorship of The Daily Tar Heel. In the meantime, spurred in large measure by the insights I had gained from the Speaker Ban fight, I had put aside my intention to become a journalist and entered law school at Chapel Hill. That’s why I often say that I became a constitutional lawyer because of two people: Jesse Helms, who tried to curtail my First Amendment rights, and Mac Smith, who fought to preserve them.
Mac’s papers, which are in the Southern Historical Collection at UNC’s Wilson Library, reflect the hundreds of hours of planning, research and preparation that he expended in his dogged pursuit of the Speaker Ban case. They also show that except for a few hundred dollars contributed by members of newly-formed North Carolina Civil Liberties Union, which was established in direct response to the Speaker Ban, he handled the suit without pay.
The defeat of the Speaker Ban Law was only one of many important legal victories in Mac Smith’s distinguished career, but I have focused on it today because it provided me with a personal connection to one of North Carolina’s greatest lawyers, and which led directly to my love for constitutional law. I am honored beyond measure to receive an award bearing the name of my friend, mentor and role model, McNeill Smith.
Town of Greece v. Galloway: Disappointing, Surprising and Worrisome
Having finally found time to read all of the concurring and dissenting opinions in the Supreme Court’s decision in Town of Greece v. Galloway, I came away disappointed, surprised and more than a little worried.
My disappointment is grounded not only in the Court’s approval of sectarian invocations at town council meetings, which was not a surprise, but also in the flimsy reasoning underlying Justice Kennedy’s majority opinion. Like former Chief Justice Berger’s 1983 opinion for the Court upholding the practice of having prayers offered in state legislatures by chaplains paid from the public purse (Marsh v. Chambers, 463 U. S. 783), Justice Kennedy’s opinion for the majority in Town of Greece is predicated on historic tradition and practice and on the dubious proposition that the invocations are offered primarily for “ceremonial,” rather than religious, purposes. “Marsh,” said Justice Kennedy, “stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.”
“The tradition reflected in Marsh, he wrote, “permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition.”
I yield to no one in my respect for tradition and history, but I simply don’t think “we’ve always done it that way” and “it’s no big deal” are sufficient underpinnings for an important First Amendment decision.
I’m also disappointed that Justice Kennedy, who has both the demeanor and the reputation of a really nice fellow, seemingly has no real understanding of or empathy with Muslims, Jews, Hindus and non-religious citizens whose elected officials subject them to overtly or even aggressively Christian prayers whenever they attend town council meetings. He wrote that citizens who “feel excluded or disrespected” by sectarian invocations should simply ignore them. “Adults often encounter speech they find disagreeable,” he said.
Justice Kennedy’s insensitivity on this point makes me wonder whether he has ever had a meaningful personal conversation with Justice Elena Kagan, whose eloquent dissent clearly expresses the dismay and sense of ostracism experienced by Jewish and other non-Christian citizens when public business inevitably begins with an overtly Christian invocation. Justice Kennedy’s obtuseness pales, however, in comparison with Justice Alito’s blithe dismissal of minority’s objections as “niggling.”
If the result in the Town of Greece case was not surprising, Justice Clarence Thomas’s dissent was. In a radical deviation from mainstream Constitutional jurisprudence, he posited that the Establishment Clause was not made binding on state and local governments via the Fourteenth Amendment, and thus that the First Amendment does not prevent the town from establishing whatever official religion its elected officials choose. To their credit, none of Justice Thomas’s colleagues joined in support of this notion, but his raising of it also raises a question: Did the plaintiffs consider challenging the town’s prayer practices on grounds that they violated the Constitution of the State of New York, which dismantled all religious establishments in 1777?
The most worrisome part about the Town of Greece opinion is its naïveté. Justice Kennedy has degrees from Stanford, the London School of Economics and the Harvard Law School, but he presumably has not had much experience sitting in on meetings of town or county boards or councils – particularly in rural America or the Bible Belt. If he had, he would have known that not every elected local official will take to heart his admonition that legislative invocations will be deemed constitutional only so long as they are “brief, solemn and respectful” and do not cross over into coercion or intimidation. Rather, a few fervent religious zealots who won’t bother to read the Court’s opinion nevertheless will take it as a blanket endorsement of their own intolerant views. Indeed, we need look no farther away than Roanoke, Virginia, where a member of the county’s board of supervisors already has announced that in light of the Court’s decision his board should adopt a policy authorizing only Christian invocations at its meetings.
I predict, sorrowfully but confidently, that in short order many more such policies will be proposed, and that some of them will be adopted. If so, Justice Kennedy and his majority colleagues will discover that in attempting to put “ceremonial” legislative prayer in its own Constitutional box they instead have opened a Pandora’s box from which will emerge many frightening and divisive Establishment Clause issues.
Will the Hudson-Levinson race be principled, or putrid?
Now that the primary election is over, the putatively nonpartisan election for the North Carolina Supreme Court seat currently held by Justice Robin Hudson is, in reality, a head-to-head contest between Justice Hudson, a Democrat, and Superior Court Judge Eric Levinson, a Republican.
Gone from the airways, at least for now, is the despicable and scurrilous television ad that maliciously and falsely attacked Justice Hudson as “not tough on child molesters.” The ad cited a 2010 decision in which the court’s seven members split, 4-3, over the constitutionality of a state law that required convicted sex offenders to undergo satellite-based monitoring, or “SBM,” 24-7, even if their offenses had been committed before the law was passed and they had completed their penal and probationary sentences. The only issue in the case was whether the monitoring – which significantly restricted the travel and activities of those who were subject to it – was a form of “punishment.” If so, its retroactive application ran afoul of the U.S. and North Carolina constitutions, both of which prohibit the ex post facto application of criminal laws.
The issue was both an important constitutional question and a close call. Courts in other states had gone both ways. The applicable facts raised thorny issues about which reasonable people clearly could differ. (For example, one question addressed by the court arose out of the fact that the SBM equipment prevented anyone being monitored from taking a commercial airline flight. Is this deprivation a form of “punishment?”)
In an opinion written by Justice Dan Brady and concurred in by Justices Mark Martin, Bob Edmunds and Paul Newby, the majority explained in detail why they felt that SBM was not punitive. Justice Hudson, in an opinion joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson, explained just as fully why they thought otherwise. Both Justice Brady and Justice Hudson argued passionately for their respective views of the constitutional issue, but neither had a kind word for child molesters or sex offenders. Moreover, since the record pretty clearly showed that the monitoring was a huge nuisance both for those being monitored and those doing the monitoring, and was not really effective as a crime prevention measure, the outcome of the case appears at the end of the day to have been largely symbolic.
Now the question is whether this tempest in a legal teapot will continue defile and define what should be a campaign between two principled people. I know and respect both Justice Hudson and Judge Levinson. Either is well qualified to sit on the North Carolina Supreme Court. But the onus in this race, like it or not, now falls on the latter. Will Judge Levinson disavow and repudiate the shabby and underhanded tactics of the big-money crowd that paid for the “not tough on child molesters” ad? If so, he is worthy of the voters’ consideration in November. Otherwise, he isn’t.
Some brief reflections on the Boyce v. Cooper settlement
The surprise settlement of the 14-year-old libel suit that Dan Boyce and his family filed against Attorney General Roy Cooper and some of his campaign staffers is mostly, but not entirely, good news.
It’s certainly good news for the parties, their lawyers and the judges and administrators of North Carolina’s court system, all of whom have devoted far too much time and energy to a case that never should have been filed or that should have been dismissed or settled a long time ago. The settlement spares everyone involved of the uncertainty and stress of one or more trials and who knows how many ensuing appeals.
It’s especially good news for the plaintiffs, who got something from Cooper they never could have gotten from the courts: an apology, albeit of the kind that my mother, who spoke primarily in Southern aphorisms and metaphors, might have called “left-handed” or “a pretty sorry ‘sorry.’” No matter how you characterize it, the Boyces and the Isleys can crow about it if they want to, and some of them surely will.
It’s also particularly good news for Attorney General Cooper, because it defuses a potentially explosive mine from the road to the 2016 gubernatorial election and enhances the likelihood that he will be able to pre-empt the field of potential Democratic candidates.
It’s bad news for people for whom fiercely contested courtroom battles are a favorite form of free entertainment. A trial would have featured some of North Carolina’s most skilled, experienced and – particularly in the case of Dan Boyce’s father, Eugene Boyce – colorful attorneys going toe-to-toe over complex issues of First Amendment law.
Finally, the settlement also is bad news for the state of libel law in North Carolina, because it forever forecloses any opportunity for the North Carolina Supreme Court to repudiate and correct an egregiously wrong decision by a panel of the state’s Court of Appeals in 2002. That decision, which misinterpreted and misapplied well-settled principles of North Carolina defamation law, overruled a trial judge’s dismissal of the Boyce v. Cooper case and set it on the tortuous, expensive and needless journey that finally ended with the unexpected settlement. It also injected uncertainty and confusion into the field of North Carolina libel law, which already was arcane and complex and did not need additional the additional aggravation provided by the panel’s wrong-headed opinion. Despite widespread criticism of the decision at the time, the state’s highest court declined to review and correct it then, and has now lost forever the chance to do so. Thus, as I wrote ten years ago, in the North Carolina Law Review, the Court of Appeals’ opinion
. . . promises to become a peculiarly dangerous specimen of legal jetsam, cast adrift on the sea of the law and presenting serious hazards for judges and litigants who attempt to navigate the already confounding currents of North Carolina defamation law.
The Boyce v. Cooper Show Gets Ready to Open
Barring an unlikely “courthouse steps” settlement or other unforeseeable development, it appears that the libel suit spawned by the 2000 election for North Carolina’s Attorney General – Boyce & Isley, et al. v. Cooper — will be going to a jury trial on April 28 after almost 14 years of legal wrangling.
As the Supreme Court explained in 1992, the type of speech at issue in the suit — a televised campaign ad — is the quintessential example of the category of speech that enjoys the highest level of First Amendment protection:
“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S., at 218, 86 S. Ct., at 1437. “For speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). Accordingly, this Court has recognized that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971)).
Burson v. Freeman, 504 U.S. 191, 196, 112 S. Ct. 1846, 1850, 119 L. Ed. 2d 5 (1992).
In my view, which I expressed more than 10 years ago in a North Carolina Law Review article, our courts should have dismissed the case at the outset in reliance both on this fundamental tenet of Constitutional law and on fundamental, well-settled principles of North Carolina libel law. (You can read the copyrighted law review article here: https://aboutthefirstamendment.files.wordpress.com/2014/04/boyce-v-isley-nc-l-rev-article.pdf) Instead they allowed the case to proceed, thereby engendering years of wasteful and unnecessary litigation and appeals, as well as widespread confusion and misunderstanding about North Carolina defamation law. So now, long after the campaign that fomented it has faded into history, the participants stand on the verge of a jury trial that never should have occurred – and which is likely to generate further appeals and litigation, regardless of its outcome.
To complicate an unnecessarily complicated case even further, the trial that is scheduled to begin later this month will involve only part of the case. One of the many oddities of defamation law is that unlike other torts, both the degree of fault that a libel plaintiff must prove, and the evidentiary standard by which he or she must prove it, vary according to the nature of the publication and the status of the plaintiff. “In actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards.” Proffitt v. Greensboro News & Record, 91 N.C.App. 218, 221, 371 S.E.2d 292, 293 (1988).
In New York Times Co. v. Sullivan, the U. S. Supreme Court prohibited public officials from recovering for alleged defamatory statements relating to their official conduct without first proving that the statement was made with actual malice. 376 U.S. 254 (1964). The Court defined actual malice as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. Later, in Curtis Publishing Co. v. Butts, the principle set forth in Sullivan was extended to “public figures.” 388 U.S. 130 (1967). Public figures are categorized as involuntary public figures, general purpose public figures, and limited purpose public figures. Gaunt v. Pittaway, 139 N.C.App. 778, 785, 534 S.E.2d 660, 664 (2000) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). “Under North Carolina law, an individual may become a limited purpose public figure by his purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.” Id. at 786, 534 S.E.2d at 665.
Because the appropriate evidentiary standards differ according to whether a plaintiff is a “public” or “private” figure, each plaintiff’s status is a threshold matter that the court must determine in advance of trial. In this case the trial judge’s decision was complicated by the fact that the suit was filed on behalf of five plaintiffs: Dan Boyce, who as a candidate for Attorney General unquestionably is a public figure, and four others whose status is less clear: Dan’s father Eugene Boyce; his sister Laura Boyce Isley; his brother-in-law Phillip Isley; and Boyce & Isley, LLP, the law firm where all four individuals practiced in 2000. Last week the trial judge ruled that Eugene Boyce is a public figure and ordered the case severed. Accordingly, the trial that is scheduled to commence on April 28 will involve only the claims asserted by Dan Boyce and his father; the claims of Phillip and Laura Isley, neither of whom was determined to be a public figure, are reserved for a second trial.
In order to persuade the judge that Eugene Boyce is a public figure the defendants had to overcome the formidable obstacles presented by the Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc. In Gertz, the Court held that an attorney was not a public figure even though he had sued the City of Chicago on behalf of a family whose child was shot and killed by a policeman; had “long been active in community and professional affairs;” had been an officer of local civic groups and professional organizations; and had published several books and articles on legal subjects. The Court determined that the lawyer had neither “achieved general fame or notoriety in the community” nor “thrust himself into the vortex” of a controversial public issue, and thus was a private figure for purposes of his libel suit.
Although the defense had argued vigorously that Gene Boyce was both a general purpose and a limited purpose public figure, the judge did not indicate clearly which type of public figure he deemed him to be. In any event, the plaintiffs did not put up a particularly strenuous opposition to the ruling; Mr. Knott told the court that it really didn’t matter, because they had plenty of evidence with which to prove “actual malice,” regardless of how many plaintiffs were classified as public figures. Moreover, anyone who has known and watched Gene Boyce over many years probably believes that he accepted the judge’s ruling with an unusual degree of equanimity because in his mind he IS a “public figure.”
The “public figure” trial, if it occurs, promises to be riveting political and legal theatre. In the starring roles are the parties, who clearly despise each other: Dan Boyce and his flamboyant and famous father Gene, as the plaintiffs, and gubernatorial hopeful Attorney General Roy Cooper, as the central defendant. The supporting cast comprises some of North Carolina’s most prominent and seasoned lawyers. Cooper’s lawyers include Alan Duncan, the current president of the North Carolina Bar Association, and his law partner Allison Van Laningham; together they successfully defended former U.S. Senator John Edwards on federal campaign corruption charges. They will be joined at the defense table by Jim Phillips, a former chair of the UNC Board of Governors, and two of his colleagues from the Brooks Pierce law firm, Eric David and Charles Coble. The plaintiffs’ case will be orchestrated by Gene Boyce himself, who will serve both as lawyer and witness, and by Joe Knott, a courtly, white-haired Wake County attorney who signed onto the plaintiffs’ team recently. Presiding over the trial will be Osmond Smith, an experienced and unflappable Superior Court judge from Caswell County whose soft voice and imperturbable affect will present a welcome contrast to the argumentative and sometimes boisterous styles of the combatants.
Whatever its outcome, Boyce v. Cooper promises to be quite a show.
Jefferson, Madison and the “Wall of Separation”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Constitution, First Amendment
To most attorneys and others schooled in Constitutional law and history, “separation of church state” is a bedrock concept: although we may argue about what it means in a particular case, we accept it as an abstract but fundamental precept embodied in the First Amendment. Some people who apparently view things more literally – including an occasional candidate for public office – question the very existence of the concept; they point out, correctly, that neither the First Amendment nor any other provision of the U.S. Constitution contains any of the words “church,” “state” or “separation.” See, e.g., http://www.hnn.us/article/132813
Let me say up front that in my view, the literalists’ point is specious; to argue that separation of church and state is an illegitimate doctrine because the First Amendment does not mention it specifically is akin to arguing that Great Britain is not required to acknowledge the existence of the United States of America because the Declaration of Independence did not alert King George III that it was to be the name of the new nation that the Colonists planned to form. To the contrary, I believe that “separation of church and state” is among our most legitimate Constitutional precepts, not only because the principal architects of the First Amendment – Thomas Jefferson and his close friend and ally James Madison – fought for the separation of church and state even before the Bill of Rights was adopted, but also because Jefferson himself explained the First Amendment’s establishment clause in those very terms.
Jefferson was a religious skeptic who was often accused during his lifetime of being an atheist. Historians often characterize him as a deist or Unitarian, but while his theology was very much Unitarian in spirit, the Unitarians were not formally organized into a sect until 1825, the year before his death. Nevertheless, Jefferson embraced the theology of Joseph Priestly, who is widely viewed as the founder of Unitarianism, and regularly attended Priestly’s church in Philadelphia when he was in the city.
Both Jefferson’s personal attitude toward religion and his formulation of the proper relationship between religion and government were grounded in the rationalist philosophy of the Enlightenment, especially the views of Francis Bacon, Isaac Newton and John Locke. The dominant spirit of the Enlightenment was skepticism toward all orthodoxy, unbridled enthusiasm for the pursuit of knowledge, and optimism that free inquiry would lead men to discern the truths inherent in the nature of the universe. Jefferson believed that an alliance between government and religion was unnatural, because religion is a private matter wholly dependent upon internal persuasions and personal conscience. Men and women, Jefferson said, are answerable for their religious beliefs only to God. In his Notes on Virginia he summed up his views in pithy language:
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket, nor breaks my leg.
Jefferson’s avowed disinterest in the religious views of his fellow men did not prevent his holding a lifelong, deep-seated antipathy toward the clergy — especially the Anglican clergy. His biographer Fawn Brodie attributes Jefferson’s hostility to preachers to his experiences at ages 14 and 15, when his tutor was James Maury, a self-righteous and bigoted Anglican priest who deprecated Presbyterians and Baptists as “dupes and deceivers,” and who considered Indians to be heathen barbarians. Whatever its source, Jefferson’s disdain for the clergy put destruction of the power of the Anglican Church at the top of his personal priorities. As Ms. Brodie says, “No other statesman of his time would match Jefferson in his hatred of the established faith.” She reports that in 1816, when he was 73, Jefferson wrote to a friend, “I am not afraid of the priests. They have tried upon me all their various batteries, of pious whining, hypocritical canting, lying and slandering, without being able to give me one moment of pain.” Jefferson apparently expected that organized religion would die out and that everyone would become, at most, Unitarians. If so, he presumably was very disappointed when instead they became Baptists and Methodists and that after the Revolution, religion became stronger in the United States rather than weaker.
James Madison was much less forthcoming about his religious beliefs than his close friend Jefferson. He was reared as an Anglican, and his early childhood teachers, like Jefferson’s, were Anglican clergymen, who often supplemented their meager salaries in colonial times by tutoring the children of influential parishioners. According to his biographer Ralph Ketchum, “[d]own through his graduation from college every one of Madison’s teachers, as far as we know, was either a clergyman or a devoutly orthodox Christian layman.” From ages 11 to 16 Madison attended a boarding school run by Donald Robertson, a Scottish-born minister and schoolmaster. Then he studied for two years at home under the Revered Thomas Martin, an Anglican rector who lived in the Madison household as a “family teacher.” Martin, whose brother Alexander later served as governor and United States Senator in North Carolina, was from a Scots-Irish family and had graduated from the Presbyterian-dominated College of New Jersey (now Princeton) in 1762. His influence presumably was critical to Madison’s decision to attend Princeton, although Madison later wrote that he avoided William and Mary, the expected choice of the Virginia gentry, because “the climate at [Williamsburg] is regarded as unfavorable to the health of persons from the mountainous region.” Although Williamsburg was known then (and now) for its “noisome vapors,” the unsuitable climate at William and Mary also may have included the college’s reputation as a party school with lax academic standards.
Madison wrote far less about his religious views than his close friend Jefferson, perhaps because he was reserved and less inclined than Jefferson to pronounce judgments, or perhaps because his scholarly, analytical mind never settled firmly on a personal creed. Ralph Ketchum characterizes Madison as “a rather passive believer” who accepted many of the basic tenets of Christian thought, such as the infinite worth of the human soul and the idea that each person was responsible for cultivating a proper relationship with God. It is hardly surprising that the framework of Madison’s personal philosophy would rest on Christian bedrock, given that virtually all of his teachers were clergymen. Yet Ketchum says that shortly after graduating from Princeton “Madison seems simply to have dropped his interest in doctrinal questions, troubling, so far as we know, neither to reject nor to reaffirm his religious tenets thereafter.” “Though not inclined to religious speculations,” Ketchum says, “Madison adhered to a calm faith in a moral, orderly universe presided over by a God beyond the limited capacity of man to conceive or understand.” “It seems clear,” Ketchum says, “that he never embraced fervently nor rejected utterly the Christian base of his education. He accepted its tenets generally and formed his outlook on life within its world view.” Whatever he believed, Madison neither disparaged the beliefs of others nor sought to impose his own on anyone else.
Although Madison was reticent about his own religious views, he was vocal, and even vociferous, in the cause of religious freedom from early adulthood to the end of his life. In a letter to his Princeton classmate William Bradford dated January, 1774, when Madison was 23, Madison lamented the prosecution of Baptist ministers in nearby Culpeper County:
That diabolical Hell-conceived principle of persecution rages among some,” he wrote, “and to their eternal infamy the clergy can furnish their quota of imps for such business. This vexes me the most of anything whatever. There are at this time in the adjacent county not less than 5 or 6 well-meaning men in [jail] for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear talk or think of anything relative to this matter, for I have squabbled and scolded, abused and ridiculed so long about it, to so little purpose, that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us . . .”
Madison’s ardor can be traced directly to his experience at Princeton. Of Madison’s many Christian teachers, the most influential clearly was John Witherspoon, the Scottish-born Presbyterian minister who was president of the college. Although orthodox in his own beliefs, Witherspoon encouraged intellectual inquiry and defended every person’s “right to private judgment in matters of opinion.” Madison so admired Witherspoon that he stayed on in Princeton for six months after his graduation in order to study under him.
Jefferson and Madison apparently met in 1776 as fellow members of the Virginia House of Delegates. As documented by their regular correspondence, much of which was written in their private code, they were lifelong friends and political allies thereafter. Their friendship, in which Madison’s quiet pragmatism and political skill both melded with and tempered Jefferson’s visionary outlook, also involved frequent visits back and forth between Jefferson’s home at Monticello and Madison’s family seat 23 miles away at Montpelier, in Orange County.
In 1776, the year he met Madison, Jefferson drafted two documentary pillars of the American historical canon: the Declaration of Independence and the Virginia Statute of Religious Liberty. Each includes rhetorical references that reflect Jefferson’s views about the relationship between God and government. In the former, Jefferson posited that the “the laws of Nature and of Nature’s God” entitled the American colonists to govern themselves and refers to inalienable rights having been endowed by the Creator. To Jefferson, “Nature’s God,” who is undeniably visible in the workings of the universe, gives man the freedom to choose his religious beliefs. This is the divinity whom deists of the time accepted—a God who created the world and is the final judge of man, but who does not intervene in the affairs of man. This God who gives man the freedom to believe or not to believe is also the God of the Christian sects.
The Virginia Statute for Religious Freedom, which Jefferson formally introduced in the Virginia Assembly in 1779, is the forerunner of the First Amendment’s establishment and free exercise clauses. Its first paragraph proclaims, in majestic language, that freedom of thought is a natural right.
I. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishment or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was his Almighty power to do . . .
The second paragraph is the act itself, which states that no person can be compelled to attend any church or support it with his taxes. It says that an individual is free to worship as he pleases with no discrimination.
II. Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
The third paragraph reflects Jefferson’s belief in the people’s right, through their elected assemblies, to change any law. Here, Jefferson states that this statute is not irrevocable because no law is (not even the Constitution). Future assemblies that choose to repeal or circumscribe the act do so at their own peril, because this is “an infringement of natural right.”
III. And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the act of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such as would be an infringement of natural right.
Although passage of the Statute was blocked for several years by Assembly members who were friendly to the Anglican Church, the colony’s changing religious demographics – particularly the rapid growth of the Baptists and Methodists in the western part of the state — worked against them. As early as 1776 Baptists and Presbyterians submitted petitions (one of which contained almost 10,000 names) asking the Assembly to free them from “a long night of Ecclesiastical bondage.” They requested that “all Church establishments be pulled down, and every tax upon conscience and private judgment be abolished” in order that Virginia might become “an asylum for free inquiry, knowledge, and the virtuous of every denomination.” At Madison’s urging, it was passed by the Virginia General Assembly on January 16, 1786 in the aftermath of the defeat of a proposal by Patrick Henry and other members to levy a tax for the support of Christian ministers. At the time, Jefferson was in Paris serving as minister to France, so Madison had the pleasure of writing to him that the bill had become law and had thereby “extinguished forever the ambitious hope of making laws for the human mind.”
1800. When Jefferson ran for President in 1800, many clergymen told their congregations that a vote for him was a vote against Christianity, and that if he were elected they would have to hide their Bibles in their wells. As a candidate, Jefferson refused to curry favor with the clergy, pointing out to Benjamin Rush that both the Congregationalist and Episcopal churches still entertained hopes of being named the established church of the United States. Each knew that his election “threatens abortion to their hopes,” he wrote, “and they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.” (The personal oath that Jefferson described to Rush is now inscribed in the rotunda of his memorial in Washington, D.C.)
1801-1804. During his presidency Jefferson compiled a pamphlet entitled Syllabus of an Estimate on the Doctrines of Jesus, Compared with Those of Others, in which he characterized Jesus’ moral system as “the most perfect and sublime that has ever been taught by man” but made it plain that he did not accept Jesus as divine. In later life he compiled a personal, expurgated New Testament from which he excluded all references to the supernatural, including the Virgin Birth, the miracles and the Resurrection, leaving in only “the matter which is evidently his, and which is as easily distinguishable as diamonds in a dunghill.” The resulting pamphlet was published after his death as The Jefferson Bible.
In October of 1801 Jefferson received a letter from the Danbury Baptist Association in Connecticut complaining that because the Congregational Church was the “official” church of the State, “what religious privileges we enjoy, we enjoy as favors granted, and not as inalienable rights. “We are sensible,” they wrote, “that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State, but our hopes are strong that the sentiment of our beloved President, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these States–and all the world–until hierarchy and tyranny be destroyed from the earth.”
Jefferson replied in a letter dated January 1, 1802. He expressed his agreement with the Baptists’ sentiments, saying:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.
Jefferson’s grave is on the grounds of Monticello. He prescribed that its simple marker would credit him with the three achievements of which he was most proud: authorship of the Declaration of Independence and the Virginia Statute of Religious Freedom, and founder of the University of Virginia (which, by the way, initially had neither a chapel nor courses for the study of theology).
Neither First nor Second Amendment Rights are Absolute
© The New Yorker 1989
When The New Yorker published this cartoon in 1989, it made me laugh.
I found the cartoon humorous at the time because 24 years ago hardly anyone HAD met a Second Amendment Lawyer, and because its humor played off of my own professional status as a First Amendment lawyer.
Time and events have vitiated the joke and turned the cartoon into an anachronism whose premise was completely lost on a young lawyer to whom I showed it recently. Since 1989 the Second Amendment, which provides that “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” has come into its own.
A couple of decades ago Second Amendment lawyers were rare because there was little work for them to do. As Jill Lepore wrote in The New Yorker last year, “In the two centuries following the adoption of the Bill of Rights, in 1791, no amendment received less attention in the courts than the Second, except the Third” (which prohibits the billeting of soldiers in private homes). The Second Amendment was so seldom written about or litigated over that it became known as “the lost amendment.” Moreover, the scant case law that was extant generally held that the amendment authorized state militias to bear arms but did not give individuals a right to own weapons. See, e.g., Miller v. U.S., 307 U.S. 174 (1939).
The fascinating political, cultural and legal forces and events that elevated the Second Amendment’s star in the Constitutional firmament are beyond the scope of this commentary but are well chronicled in Ms. Lepore’s “Battleground America: One nation, under the gun,” (The New Yorker, April 23, 2012) and in a lengthy 2008 commentary by Reva B. Siegel of the Yale Law School (“Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 Harvard L. Rev. 191). Suffice it to say that by 2008, when the Supreme Court issued its opinion in District of Columbia v. Heller, the “lost amendment” had evolved (at least in the minds of five justices) into the source of a fundamental right of individual citizens to own firearms.
In other words, the last 25 years or so have seen Second Amendment rights emerge in much the same way that First Amendment rights developed during the period between World War I and 1931, during which decisions such as Gitlow v. New York, Whitney v. California and Near v. Minnesota declared that freedom of speech and press were fundamental rights protected by the due process clause of the Fourteenth Amendment.
These days we hear a lot of gun advocates saying, or at least implying, that because the Second Amendment says the right to bear arms “shall not be infringed,” no gun control measures of any kind are constitutional. Indeed, this was essentially the position that Ted Cruz and 13 other U.S. Senators laid out in a March, 2013 letter to Senate Majority Leader Harry Reid in which they threated to filibuster any new restrictions, no matter how tepid, on “responsible, law-abiding gun owners.”
I don’t know whether this absolutist interpretation of the Second Amendment reflects ignorance, duplicity or both. Perhaps it stems in part from a feeling on the part of gun supporters that they need to rely on hyperbole to protect a right that was formally and fully recognized only five years ago. Whatever its basis, it is wrong, because no constitutional rights – including the First Amendment rights to which I have devoted much of my legal career – are completely unfettered.
The Second Amendment says the right to bear arms shall not be “infringed;” the First says the freedoms of speech and press cannot be “abridged.” The two terms are interchangeable and indistinguishable in this context, but whether they were intended to mean exactly the same thing or not, the courts have not interpreted either to mean that the rights in question are absolute. Indeed, Justice Scalia acknowledged as much in his opinion for the Court in District of Columbia v. Heller, the 2008 case that clarified the scope of the Second Amendment. He wrote:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not [citation omitted]. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
Limitations on the freedom of speech most often take the form of “time, place and manner” restrictions, such as local ordinances that restrict the locations, hours and decibels at which sound trucks may operate, or that prohibit picketers from entering courthouses or blocking public sidewalks. Such restrictions accommodate public convenience and promote social order by regulating traffic flow, preserving property interests, conserving the environment and protecting the administration of justice. So long as they are content-neutral and reasonable, regulations of this kind do not offend the First Amendment. The right to “peaceably assemble” does not mean that local governments cannot require demonstrators to obtain parade permits. The “free exercise” clause does not immunize churches against reasonable ordinances limiting noise generated by singing, shouting and preaching.
Perhaps I am missing something, but I see no principled distinction between reasonable “time, place and manner” restrictions on First Amendment rights and laws or ordinances that bar firearms from schools, parks and college campuses. Our elected representatives could decide to allow rock bands to play in residential neighborhoods at any hour of the day or night, and they could decide to allow elementary school teachers to keep handguns in their desks, but if they do either of those things they should not be heard to say that their decision is justified, much less mandated, by the First Amendment or by the Second.