Dear class,

I’m very sorry that I’ve waited so long to get out the assignment, but I was away from my computer for the last couple of weeks, and only got done editing the attached cases a minute or two ago.  I will work tomorrow on getting out the first segment of the syllabus, which includes my comments, given in advance of class, so that you can mull them over.  The assignment for Wednesday appears after I explain Monday’s reading.

Most people would think that the essence of this course is the importance of speech and thought, and certainly,  these are critical.  But the course is also about liberty, and the widespread interest in libertarianism reminds us that modern individual liberties started as part of substantive due process, which originally included freedom of contract, a staple of modern conservative libertarianism. Witness Ron Paul and the Cato Society, who, as far as I know, are against most forms of economic regulation, such as minimum wage laws, thus putting them with the most conservative critics of the New Deal and “Big Government,” but are also against most drug laws and the Iraq and Afghanistan Wars, and have views on freedom of speech and press that are very close to those of the American Civil Liberties Union. 

For this reason, I am giving you edited versions of Lochner v. New York, the 1905 case that gave its name to the whole area of conservative judicial review of business regulation, Nebbia v. New York, the 1934 decision that killed economic due process (though that wasn’t clear until the following case, in 1938), and  United States v. Carolene Products Co. (1938), which appears to distinguish economic regulations from those affecting individual personal liberties in its famous Footnote Four.  I also ask you to read a few pages in the casebook, and finally, attach a short note from The Volokh Conspiracy, a libertarian blog that is widely read by readers of all political hues.  I will try to keep the assignments to about 20-25 pages, but this one is a bit longer, though I did my best to edit the cases down.  (There are some blank spaces because of my ineptitude as a cut and paster.  On the three Word attachments, they will first come up in microprint, but will go to readable size if you click on Close once.  I hope you can open the Volokh thing; I think it’s in Adobe, or some such. If you have trouble, email me.) We’ll post this email on the First Day Assignments place on the School’s web page.

Here are the first two entries of the syllabus, the actual assignments for the first week, with a few bridging comments by me:

Monday, August 27, 2012:  Please read the following, in the order listed:

Lochner v. New York (1905) – attached.  Pay particular attention to Oliver Wendell Holmes’s famous dissent, which was profoundly influential.

Casebook (Shiffrin and Choper, The First Amendment (5th ed. 2011)) pages 401-02.   Meyer v. Nebraska is a foundation case for the right of privacy and is still very good law, but note how it fits right in with the majority opinion in Lochner.  Holmes dissented in a related case.

Casebook pages 398-400.   Pierce v. Society of Sisters, decided two years after Meyer and relying on it, deserves the same comment.  Notes 1-5 following it raise some libertarian issues, as well as some First Amendment ones that we’ll discuss later in the term.

Nebbia v. New York (1934) – attached.  The specific holding in Lochner, on maximum hours, had been abandoned earlier, but it was this case that first rejected the freedom of contract portion of the case.  Although the Court seemed to retreat from it in 1936, in West Coast Hotel v. Parrish, the 1937 “switch in time” case, it made the abandonment of economic substantive due process permanent (at least until the Health Care case, this year).

United States v. Carolene Products Co. – attached.  Justice Harlan Fiske Stone put the nail in the coffin of substantive due process,  saying that the burden was on those raising constitutional challenges, and that the challenges  could be satisfied by the government showing a rational basis for the legislation challenged.  But he limited his statement to “ordinary commercial transactions,” and attached the famous Footnote Four, which is the source of the argument that individual liberties have a “preferred position” over economic ones.  Read Footnote Four carefully and closely.

Excerpt from The Volokh Conspiracy on “Discrimination in Public Accommodations” – attached.  Later this term, we will study the important concept of the public forum, based on holdings in the Thirties and Forties that everyone had a right to speak and give out leaflets on public streets, squares and parks.  As privately owned shopping centers replaced downtown public shopping districts, the issue became whether the malls could be deemed public forums.  The Court rejected this idea under the First Amendment, finding no state action, but in Pruneyard Shopping Center v. Robins (1980), written by Justice William Rehnquist, it upheld a California Supreme Court holding that its state constitution gave a right of access. Rehnquist rejected the mall owner’s argument that his property rights were invaded by this holding, citing Nebbia for the proposition that there was no absolute right of property.  This excerpt from The Volokh Conspiracy discusses a very recent California jury verdict, and raises questions about public accommodations and the private rights of owners. 

Wednesday, August 29, 2012: Casebook 2-27. 

These are the bedrock cases on the First Amendment.  Notice how the three opinions that Holmes wrote for the unanimous Court in the spring of 1919 (Schenck v. United States, p. 3, Debs v. United States, p. 5, and Frohwerk v. United States, p. 5 n. b, are really consistent with the hands-off attitude toward legislation by the majority in his Lochner dissent.  Does his initial clear and present danger test give much protection to speech?  Does he sound very concerned about freedom of speech?  (In a letter to his friend, the British socialist writer Harold Laski, Holmes said of the argument in Debs, that “there was a lot of jaw about speech.”) Contrast the young Learned Hand’s trial court opinion two years earlier, in Masses Publishing Co. v. Patten, p. 8, which was summarily reversed by the Second Circuit.  What, exactly is Hand’s test? 

                In the fall of 1919, the Court had another case under the Espionage Act, Abrams v. United States, but this involved amendments that made reference to impairing the war effort against the German Empire.  The defendants claimed they were only against the American invasion of Russia after the Bolshevik Revolution, but the majority said their words would also affect the war against Germany.  Here, Holmes dissents, joined by Justice Louis D. Brandeis.  He makes a very good technical argument for the defendants, arguing that the amended statute required specific intent against the war effort against Germany, but then he goes on to talk about freedom of speech and the clear and present danger test.  Does he sound like the same Holmes from the previous spring?  The opinion is followed by a note on the “Marketplace of Ideas” (a phrase never used by Holmes in Abrams.  He continues dissenting and adds the memorable phrase “every idea is an incitement.” Note his remark about a proletarian dictatorship.  Don’t they somehow sound like his statements in his Lochner dissent about the state being able to abandon capitalism?  But there he was using them to uphold the legislation, and here he is using them to strike it down.  Yet here he has tied Gitlow’s right to speak to majority rule.  How?

                Louis Brandeis is considered one of the greatest justices; he has both a university (in Massachusetts) and a law school (in his native Louisville, Kentucky) named after him.  In Whitney v. California, p. 20, he writes a very famous concurrence (the last paragraph explains why he concurs rather than dissents).  Note, in the first paragraph on page 22, how he deals with substantive due process.  (Brandeis, who wasn’t on the Court until 1916, consistently dissented from the conservative majority’s opinions striking down social legislation.)  This presumably explains why he joined in the first three cases.  How does he distinguish speech?  What he writes is the essence of what is today often called Civic Republicanism – a notion that we have an obligation to take an active part in the governance of our society.  The Whitney concurrence is the source of the concept that the remedy for bad speech is more speech, not suppression.  It is worth very careful reading.

                Note that in all the cases we read today, the person advocating freedom of speech and press lost.  But as note 4 on page 27 points out, the tide began, slowly, to turn, in the thirties.  As we’ll see in the next class, by 1950, the Holmes/Brandeis position had triumphed, and yet the defendants still lost.

* * *

See you on Monday,

Peter Linzer

Peter Linzer
Professor of Law
University of Houston Law Center
100 Law Center
Houston, Texas 77204-6060
(713) 743-2176