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Aaron H. Caplan is an associate professor of law at Loyola Law School - Los Angeles, where he teaches courses in constitutional law. He has also litigated the constitutionality of punishing false statements made during political campaigns.

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When can the government punish liars? The question recently arose in back-to-back federal court opinions finding the Stolen Valor Act of 2005 to be unconstitutional. The statute makes it a federal crime for any person to "falsely represent[] himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal." In July, the District of Colorado found the act unconstitutional in US v. Strandlof, and in August a divided panel of the Ninth Circuit reached the same conclusion in US v. Alvarez.

In striking down the act, neither court announced a "right to lie" as has been bandied about in some press accounts. Alvarez said the opposite: "There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny." Instead, both decisions recognized that in a society committed to freedom of speech - and, as I argue below, freedom of thought - the government does not have authority to punish lies simply because they are lies. Instead, there is power to regulate certain harmful lies.

False Statements of Fact As A Less-Protected Category

Government has more power to punish speech that falls within the so-called "unprotected" (or, more accurately, "less-protected") categories, such as incitement to imminent violence, true threats to inflict bodily injury, obscenity, fraud, defamation, false advertising, or speech in furtherance of a crime. The statements in Strandlof and Alvarez fell within none of these. One could imagine scenarios where someone might lie about having received a medal as part of a scheme to defraud. In recent years, many prosecutors have used anti-fraud statutes to prosecute in those situations, purposely avoiding reliance on the Stolen Valor Act due to doubts about its constitutionality. In the latest cases the defendants' bogus boasts were not used to cheat anyone, but only to scratch some inner itch.

Are the less-protected categories of fraud, defamation, and false advertising truly separate categories, or are they expressions of a single concept, namely that all false statements of fact are per se less protected? Existing Supreme Court opinions don't answer the question. In a frequently quoted phrase from Gertz v. Robert Welch, Inc., the Supreme Court said, "there is no constitutional value in false statements of fact." Yet the Court has often given constitutional protection to demonstrably false utterances, requiring additional showings before they may be proscribed. In New York Times v. Sullivan, the Court not only recognized that some falsity is "inevitable in free debate," but went further to find affirmative value in it, quoting John Stuart Mill: "Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error'."

The opinions in Alvarez puzzled over how to harmonize these conflicting statements. The dissent took the Gertz dictum at its word, concluding that all false statements of fact form a single exception to the general rule of free speech. Cases like New York Times v. Sullivan represent exceptions to the exception, whereby a subset of false statements are protected because punishing them would cause an unacceptable chilling effect on truthful speech. In an interesting amicus brief in Strandlof, Eugene Volokh argued that the Stolen Valor Act was unlikely to create such a chilling effect. If that is the right question, this may be the right answer. (Amicus briefs opposing the Act were also filed by the ACLU of Colorado and the Rutherford Institute.)

The majority, in my view, had the better of the argument because it looked beyond dicta to the facts and holdings of the cases. Past decisions upholding punishment for lies involved harms beyond mere disapproval of lying. These include the financial losses that accompany fraud, the obstruction of justice that flows from perjury or false swearing, or the injury to psyche caused by defamation. Even Oliver Wendell Holmes' famous remark from US v. Schenck that the First Amendment does not protect "falsely shouting fire in a theatre and causing a panic" includes harm in the form of a panicky crowd that can stampede. Falsely shouting fire on a lonely beach is a different matter. On this understanding, the majority correctly concluded that the less-protected categories defined thus far are what they purport to be.

The use of an alias provides a good example. I. Lewis Libby tells people his name is "Scooter," and Marshall Mathers presents himself as "Eminem," although both are demonstrably false statements of fact regarding their names that can be disproved through government birth records. One is free to use an assumed name so long as it is not done as part of a scheme to defraud. The same should apply to a false statement about receiving a medal, which can be disproved through government records in the same way. Indeed, the ease of proving falsity makes it suitable for correction in the marketplace of ideas, as seen at the Medal of Honor Imposters website.

Truth Police

Our free speech alarms should ring especially loudly whenever an utterance is banned purely out of official disapproval. If speech could be banned merely because it were false, Congress could ban assertions in favor of creationism or evolution. Galileo's assertion that the earth revolved around the sun was a factual assertion that was once deemed officially false. The government should not be the truth police in the absence of other harm.

Volokh's amicus brief recognized this peril, and proposed that false statements of fact could not be punished if made when discussing the government, history, or science. But if false statements are presumptively proscribable, it becomes difficult to construct a legal principle to explain the exceptions to the exception. The Alvarez majority approach is conceptually cleaner and provides better guidance in separating proscribable from protected false statements.

Controlling Speakers to Control Listeners' Thoughts

Freedom of speech, like freedom of religion, is also about freedom of thought. When despotic governments have acted as truth police, they punish perceived untruths in large part to ensure conformity of thought in society at large. The Stolen Valor Act shares that vice. The tip-off is in Congress's statement of purpose, which is "to protect the reputation and meaning of military decorations and medals." Congress wants to control what everyone thinks military medals mean.

People should be allowed to decide for themselves what meaning to attach to symbols - especially symbols of government. This is the lesson of Texas v. Johnson and US v. Eichman, which rejected any valid interest in dictating how the flag must be perceived as "a symbol of nationhood and national unity." As we know from West Virginia State Board of Education v. Barnette, "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

The dangers of government as truth police outweigh any damage that may come from the imposters who tell obnoxious but not harmful lies about themselves. Faced with these charlatans, we should take a deep breath and remember Justice Jackson's statement from US v. Ballard that the price of free speech "is that we must put up with, and even pay for, a good deal of rubbish."

The rising rhetoric and increasing rallies aimed at disparaging Islam represent "a new threat to the religious freedom of Muslims in America," writes the First Amendment Center's Charles C. Haynes.

Haynes, the director of the Newseum's Religious Freedom Education Project, notes that "anti-Muslim rhetoric has taken an ominous turn in recent months as a growing number of political and community leaders - some with tea-party affiliations - have begun warning of a ‘Muslim takeover' of America."

Haynes cites numerous anti-Muslim rallies from Tennessee to California, including the loud opposition to the construction of an Islamic center in New York City.

Haynes writes:

In recent months, tea-party groups in New York have also helped organize opposition to mosques in Manhattan (the controversial plan to build an Islamic center two blocks from ground zero), Brooklyn and Staten Island. Tea-party meetings in Tennessee, Texas and California feature speakers warning of the ‘Islamization of America.'

In an ironic twist reminiscent of the anti-Catholic rallies of the 19th century (warning against ‘Romanism' seeking ‘despotic control' of America), anti-mosque protests in Murfreesboro, Temecula and elsewhere feature groups of citizens invoking their First Amendment rights to freedom of speech and assembly to call for denying another group of citizens First Amendment protection.

...

If the anti-mosque protests are any indication, Islamophobia - the fear and loathing of Islam as a ‘violent political ideology' - is a growing threat to religious freedom in the United States. And in many communities, some tea-party activists are actively encouraging and supporting this dangerous trend.

[image via commons.wikimedia.org]

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By Martha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics in the Philosophy Department, Law School and Divinity School at the University of Chicago.

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We are in the midst of a crisis of massive proportions and grave global significance. No, I do not mean the global economic crisis that began in 2008. At least then everyone knew that that crisis was at hand, and many world leaders worked quickly and desperately to find solutions. No, I mean a crisis that goes largely unnoticed, a crisis that is likely to be, in the long run, far more damaging to the future of democratic self-government: a worldwide crisis in education.

Radical changes are occurring in what democratic societies teach the young, and these changes have not been well thought through. Eager for national profit, nations, and their systems of education, are heedlessly discarding skills that are needed to keep democracies alive. If this trend continues, nations all over the world will soon be producing generations of useful machines, rather than complete citizens who can think for themselves, criticize tradition, and understand the significance of another person's sufferings and achievements.

What are these radical changes? The humanities and the arts are being cut away, in both primary/secondary and college/university education, in virtually every nation of the world. Seen by policy-makers as useless frills, at a time when nations must cut away all useless things in order to stay competitive in the global market, they are rapidly losing their place in curricula, and also in the minds and hearts of parents and children. Indeed, what we might call the humanistic aspects of science and social science - the imaginative, creative aspect, and the aspect of rigorous critical thought - are also losing ground, as nations prefer to pursue short-term profit by the cultivation of useful, highly applied skills, suited to profit-making.

Consider these two examples. Both concern higher education, but similar changes are taking place at all ages.

• In the fall of 2006, the United States Department of Education's Commission on the Future of Higher Education, headed by Bush Administration Secretary of Education Margaret Spellings, released its report on the state of higher education in the nation: A Test of Leadership: Charting the Future of U. S. Higher Education (pdf). This report contained a valuable critique of unequal access to higher education. When it came to subject matter, however, it focused entirely on education for national economic gain. It concerned itself with perceived deficiencies in science, technology, and engineering - not even basic scientific research in these areas, but only highly applied learning, learning that can quickly generate profit-making strategies. The humanities, the arts, and critical thinking were basically absent. By omitting them, the report strongly suggested that it would be perfectly all right if these abilities were allowed to wither away, in favor of more useful disciplines.
• In the fall of 2009, in Britain, the Labor Government issued new guidelines for its Research Excellence Scheme, which will assess all individuals and departments in British universities. According to the new criteria, 25 percent of the grade for each researcher will be based on that person's "impact," meaning, basically, contributions to economic growth and success. The humanities and the arts will now be forced to become salesmen for a product, and they will be able to justify their contribution and their claim to funds only if they can demonstrate a direct, short-term economic impact.

The profit motive suggests to concerned politicians that science and technology are of crucial importance for the future health of their nations. We should value good scientific and technical education, and I do not suggest that nations should stop trying to improve in this regard. My concern is that other abilities, equally crucial, are at risk of getting lost in the competitive flurry, abilities crucial to the health of any democracy internally, and to the creation of a decent world culture and a robust type of global citizenship, capable of constructively addressing the world's most pressing problems. These abilities are associated with the humanities and the arts: the ability to think critically; the ability to transcend local loyalties and to approach world problems as a "citizen of the world"; and the ability to imagine sympathetically the predicament of another person.

My book, Not for Profit: Why Democracy Needs the Humanities, studies each of these abilities in turn, asking why each is important and how each can be embodied in education from primary years to college and university liberal arts curricula. I then show why each is crucial to the stability of a vigorous democratic culture, one that is able to withstand the forces of fear, hatred, and greed that are found in every society.

If the real clash of civilizations is, as I believe, a clash within the individual soul, as greed and narcissism contend against respect and love, all modern societies are rapidly losing the battle, as they feed the forces that lead to violence and dehumanization and fail to feed the forces that lead to cultures of equality and respect. If we do not insist on the crucial importance of the humanities and the arts, they will drop away, because they don't make money. They only do what is much more precious than that, make a world that is worth living in, people who are able to see other human beings as full people, with thoughts and feelings of their own that deserve respect and sympathy, and nations that are able to overcome fear and suspicion in favor of sympathetic and reasoned debate.

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By Sahar Aziz, a civil rights attorney and principal of the Law Office of Sahar Aziz. Ms. Aziz serves on the Advisory Committee of the Charity and Security Network and as counsel to the Bill of Rights Defense Committee.

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Days before Secretary Clinton urged foreign governments to promote rule of law through an independent civil society; the U.S. Supreme Court struck a blow to American civil society's commitment to international human rights.

In Holder v. Humanitarian Law Project (HLP), the Court ruled it is unlawful to train organizations designated as terrorist on how to resolve their disputes through peaceful means. Allowing Americans to provide training in nonviolent conflict resolution, the Court reasoned, would legitimize terrorist organizations.

The outcome is quite the opposite. Rather than bolster national security, the HLP ruling ultimately undermines America's leadership in the international community. Take for instance Secretary Clinton's statements on July 3, 2010 at the Community of Democracies. Speaking to civil society leaders and government officials from across the world, Secretary Clinton highlighted the important role an independent civil society plays in promoting democracy, combating corruption, and countering terrorism. She aptly noted "[f]reedom of association is the only freedom defined in the United Nations declaration of human rights that does not enjoy specific attention from the UN human rights machinery. That must change."

But her call to action fell on deaf ears in America's highest court. As Secretary Clinton devoted an entire speech in support of freedom of association and human rights, the U.S. Supreme Court significantly curtailed such rights for Americans. American nongovernmental organizations, former diplomats, and advocates are unable to work toward persuading terrorists to put down their guns and seek redress by peaceful means.

The plaintiffs in HLP sought an injunction against criminal prosecution for training the Kurdistan People's Party and the Tamil Tigers on how to use international law to resolve disputes peacefully. Both organizations are designated as terrorist by the U.S. government. Through training on conflict resolution mechanisms available at the United Nations and other international bodies, the plaintiffs hoped to dissuade these groups from resorting to violence as a means of resolving ostensibly intractable conflicts.

The Supreme Court, however, decided such efforts hold no social value. According to the majority opinion, such training only legitimizes the designated groups' terrorist activities and threatens American national security. Losing sight of the substantial First Amendment free speech and association rights at issue, the Court adopted wholesale the government's alarmist position. Any assistance to designated organizations on how to use the United Nations' peaceful conflict resolution process purportedly makes it easier for them to recruit members, raise funds, and ultimately facilitate more terrorist attacks.

To the contrary, prosecuting American charities seeking to persuade organizations to drop their guns and pick up their pens undermines decades of progress made in promoting human rights as a means of countering violence. Had such a policy been in place in the 1990s, Americans' pivotal intervention in ending Ireland's bloody conflict would not have transpired. And the Irish could still be seeking justice through the barrel of a gun.

Paradoxically, much of the Court's reasoning relied on deference to the executive branch in the arena of foreign affairs and national security. Yet, the ruling ultimately undermines the executive branch's efforts to shift the global conflict resolution paradigm from violence to peaceful avenues of resolving grievances. Moreover, the ruling erodes the independence of America's civil society. Rather than serve as a beacon of leadership within the international community, American civil society's hands are now tied. Their courageous efforts to pursue peaceful means to resolve violent conflicts have been forfeited.

Secretary Clinton's speech in Poland, while commendable, thus will have little impact. Foreign governments will invoke the same national security arguments relied on by the Court in HLP to justify their crackdown on civil society. And foreign nongovernmental organizations will understandably question the sincerity and commitment of our government who, on the one hand encourages them to risk their lives in support of democracy, yet on the other hand prosecutes and imprisons its own citizens for advocating for nonviolence.

The Supreme Court in HLP got one thing right. The case was indeed about legitimacy - that of civil society employing international human rights as the predominant avenue for redress. This legitimacy is now in peril.

 

Late in its term, the Supreme Court upheld a law that bars many forms of aid, including humanitarian, to groups the federal government has categorized as terrorist ones. The "material support," law had been challenged by groups and individuals who argued, in part, that the law is so broad it violates their free speech and association rights.

Writing for a 6-3 majority in Holder v. Humanitarian Law Project, Chief Justice John Roberts concluded that the federal government may "prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities." But in a dissent, Justice Stephen Breyer blasted the majority opinion for upholding a law that suppresses activities that "are of a kind that the First Amendment ordinarily protects."

During the 2010 ACS National Convention a panel of experts explored the material support law's constitutional impacts. Following the panel, "Material Support Provisions and the First Amendment," David D. Cole, a law professor at Georgetown University Law Center and the attorney who helped represent the groups and individuals challenging the material support provisions, talked with ACSblog about the history of the law. Cole said the federal government, stretching back to the Clinton administration, has shown "very little interest in narrowing the law," and in fact has argued for the broadest reading of the law. Cole concluded by saying that he hoped Congress would eventually find the will to rein in the law. Cole's interview is below, or it can be downloaded as a podcast here. Video of the entire panel discussion is available here.

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By Judge Lynn Adelman and Jon Dietrich, authors of a recent article for the Harvard Law & Policy Review

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In the latest issue of the Harvard Law & Policy Review, we published Extremist Speech and the Internet: The Continuing Importance of Brandenburg. Our article, is essentially an ode to the 1969 decision of the Supreme Court in the case of Brandenburg v. Ohio, which imposed a very high bar for the regulation of potentially dangerous speech. We respond to arguments that First Amendment doctrine is insufficiently flexible to deal with extremist and hate speech conveyed on the internet. We argue that Brandenburg's speech-friendly formulation has served us well and is entirely adequate to deal with internet communication. In particular, Brandeburg prohibits punishment for the advocacy of the use of force or violation of the law except when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

We point out that the internet is a typical example of how technological advances in communication have caused people to become uneasy about broad protections for speech. This goes back to the invention of the printing press. We argue that there is nothing about the transmission of information via the internet which requires that weakening of the robust protection of speech afforded by Brandenburg. We discuss cases in which the Brandenburg standard has protected internet speech, and we show on a more general level how Brandenburg's distinction between advocacy and speech clearly likely to lead to imminent harm has benefitted our society.

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By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

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The Virginia tax-exempt corporation calling itself Citizens United has come out swinging against President Obama's nomination of Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court. The organization's president, David Bossie, takes umbrage with President Obama's statement that Ms. Kagan fights for ordinary citizens as shown by her argument "in the Citizens United case, [where] she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."

Citizens United, of course, is responsible for the Supreme Court's now notorious 5-4 holding in Citizens United v. Federal Elections Commission that created, for the first time in American history, "corporate speech" rights for all corporations that are equivalent to the people's speech rights for purposes of expenditures in American campaigns and elections.

Justice Kennedy's majority decision did not define or explain the legal meaning of "corporation," the entity to which the campaign finance restriction at issue actually applied. Instead, "identity of the speaker" was deemed an irrelevancy, and corporations simply became another "speaker," "voice" or "disadvantaged person or class" which cannot be singled out for regulation of political expenditures without violating the First Amendment's free speech clause.

This conclusion, as retiring Justice Stevens put it in his dissent, is a "radical departure" from First Amendment jurisprudence, and has been widely condemned by the American people. According to a February Washington Post-ABC News poll, 76 percent of Republicans, 81 percent of Democrats, and 85 percent of independents reject the holding. In response to the decision, thousands and thousands of Americans have called for a Constitutional amendment, several amendment bills have been introduced in Congress, resolutions calling for an amendment have been introduced in several state legislatures, momentum is building for public financing of elections, and reforms and restrictions on corporate political activity are moving through Congress and numerous state houses across the country. In short, the American people seem to agree with President Obama's condemnation of the Citizens United decision as a "strike at democracy itself."

Yet, according to Mr. Bossie, Ms. Kagan should be defaulted as a nominee to the Supreme Court because as Solicitor General she argued against Citizens United's attack on the American people's effort to restrain corporate expenditures in elections:

Given President Obama's reliance on her role in Citizens United v. Federal Election Commission and the essential importance of the First Amendment to American democracy, I urge the Senate to reject Elena Kagan's nomination to the Supreme Court. Every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal, and a nominee who does not respect that right has no business on our nation's highest court.

I believe we all share the proposition that "every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal." With all due respect to Mr. Bossie, however, corporations are not included in most people's definition of "every American."

The Citizens United decision has nothing to do with whether "every American has a fundamental right to speak out." Respectable arguments can surely be made on both sides of the question of whether the corporate expenditure restrictions of the Bipartisan Campaign Reform Act applied so as to limit promotion of Citizens United's movie attacking Hillary Clinton as a presidential candidate during certain thirty-day and sixty-day periods before federal elections. The Court's holding, however, made those arguments irrelevant.

Instead, the Court struck down the corporate expenditure restriction entirely, and went out of its way to effectively strike down any similar state law restriction. Under the Citizens United decision, Americans at every level of government are not permitted to restrict corporate political expenditures, whether the restriction is applied to a non-profit corporation using corporate funds to make a political infomercial, or to BP, Exxon, AIG, Goldman Sachs, or any other corporation spending any of the billions of dollars in corporate profits to ensure compliant officeholders, from Congress, to State Houses, to City Councils and School Committees.

President Obama is correct. We do need Supreme Court Justices who remember that ordinary citizens are what the Bill of Rights and our self-government under the Constitution are all about. But we need something else. We need Supreme Court Justices who remember that in some instances unexamined or sloppy metaphors can mislead and obscure rather than explain.

Corporations are not Americans. Corporations are not people. Corporations are not "a disadvantaged person or class." The expenditure of corporate general treasury funds to influence election outcomes is not "speech" or "voices." The people's right of free speech should not be invoked to block the people from enacting responsible regulations of corporate conduct.

It is responsible indeed for any President who seeks to protect our democracy to keep the disastrous Citizens United holding in mind when nominating a Supreme Court Justice. And it is a hopeful sign that Solicitor General Kagan appears to be a precise and careful thinker who will not substitute careless metaphor for careful analysis.

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By Rachel Levinson, Senior Counsel, American Association of University Professors

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Update (12:46 p.m., 5/14/10): Under the Fraud Against Taxpayers Act, the recipient of a Civil Investigative Demand can ask the court to modify or set aside the demand on the basis of procedural flaws or the recipient's "constitutional or other legal right or privilege." Because the period of time to petition the court is shorter than the period to respond to the demand itself, the deadline for the University of Virginia to file such a petition had been Thursday, May 20. It has recently been reported, however, that the University plans to ask Cuccinelli for more time to file such a petition. If Cuccinelli refuses, the Act suggests that the court cannot extend the time on its own; no word yet on when the request will formally be made or what Cuccinelli's response will be.  

In 1951, at the height of the McCarthy era, the New Hampshire legislature passed a statute intended to root out subversive persons and organizations in the state. Several years later, the legislature followed up with a resolution that gave the state attorney general nearly unfettered power to conduct investigations, determine whether subversive persons still lingered in the New Hampshire woods, and launch criminal prosecutions.

The attorney general, Louis Wyman, enthusiastically took to his task, targeting Paul Sweezy, founder of the Socialist magazine Monthly Review. Sweezy proved to be an unwilling witness, refusing to answer such questions as whether he and his wife were active in the Progressive Party and declining to describe the substance of a guest lecture he had delivered to a humanities course at the University of New Hampshire. Frustrated by Sweezy's refusal to answer, Wyman had Sweezy adjudged in contempt in court and thrown in county jail.

Sweezy sued, arguing that the questions violated his rights under the First Amendment. At the Supreme Court, Chief Justice Warren admonished the New Hampshire legislature and its eager attorney general in the only opinion that garnered more than one joiner (his compatriots were Black, Douglas, and Brennan):

[L]egislative investigations ... are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as ... freedom of communication of ideas, particularly in the academic community.

Warren went on, "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made .... Scholarship cannot flourish in an atmosphere of suspicion and distrust."

Ken Cuccinelli apparently did not get the memo. Cuccinelli, you may recall, is the Virginia state attorney general who briefly introduced lapel pins featuring a Confederate-era state seal with the Roman Goddess Virtus' traditionally bare breast modestly covered up. That folly, which Cuccinelli is now desperately trying to downplay, pales in comparison to Cuccinelli's current mission: to intimidate scientists, scholars, and the state's flagship university by using five-year-old grant applications as the hook for a sweeping civil subpoena demanding years worth of documents from the University of Virginia.

On April 23, Cuccinelli filed a "civil investigative demand" (CID) targeting climate scientist and former UVA faculty member Michael Mann. Mann is the progenitor of the so-called "hockey stick" graph of global warming, showing man's effect on the rise of the world's temperature. Mann was also at the center of a scandal last year involving email messages among scientists corresponding with a climate center at East Anglia University in Britain. The email messages led to charges that some climate scientists, including Mann, were changing or suppressing data that might cast doubt on the man-caused global warming hypothesis. Those charges were later determined to be groundless by multiple scientific and academic bodies, including the National Academies of Science and Penn State, where Mann has been a faculty member since 2005.

Despite those findings by bodies with the scientific and academic expertise to engage in legitimate peer review of Mann's work, Cuccinelli apparently thought he could do better. His civil investigative demand, which relates to Mann's applications for state grant funding (presumably dating from his time at UVA), invokes the Virginia Fraud Against Taxpayers Act (FATA), which imposes civil liability for knowingly submitting a "false or fraudulent claim" for payment under a variety of circumstances.

The demand for information is breathtaking in its scope. It requests all communications from 1999 to 2005 that Dr. Mann sent to, received from, or sent in reference to any of 39 other scientists and every single research assistant, secretary, and administrative staff member he ever worked with, as well as a raft of documents and work product related to the grant applications and Dr. Mann's findings.

This appears to be nothing less than a politically-motivated fishing expedition. So why is Cuccinelli fishing?

Cuccinelli has acknowledged that he has a political agenda, and he seems to be pursuing it with every means at his disposal. As he told one reporter, "you know I'm a politician and I ran on an agenda for attorney general winning the most votes that anyone has ever gotten in history and I'm doing exactly what I said I was going to do." (Apparently the role of the attorney general does not include coordinating with the governor, even in the same party; as Governor Bob McDonnell told a Washington Post reporter, "What the attorney general's theories are - I only know what I read in the paper, and I've not spoken with him.")

Cuccinelli has also said that he does not believe that human activities caused global warming. Eight days before he served the university with the subpoena, he filed suit against the Environmental Protection Agency, contending that the "Climategate" emails constitute after-discovered evidence - despite the academic and scientific consensus suggesting otherwise - that should compel the EPA to re-open public discussion over regulation of fuel standards.

Most chillingly, Cuccinelli appears to believe that his office is better-positioned than experts in the academic and scientific communities to assess the validity of the complicated field of climate science. In addition to demonstrating a profound misconception of the scientific process, the potential chilling effect of this tactic is staggering. Scientific theories are expanded, modified, or discarded with regularity; hauling up scientists on charges of fraud when they explore ideas that may ultimately be revised or disproven will put the brakes on scientific progress.

In the meantime, the University of Virginia has indicated that it intends to comply with the Attorney General's demand. Justice Frankfurter fretted in the Sweezy case over "the grave harm resulting from governmental intrusion into the intellectual life of a university." Ken Cuccinelli and the UVA Board of Visitors should heed that warning. When scholars and scientists are bullied into avoiding controversial areas of research, it is the public that loses.

[Image via Wikimedia Commons.]

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By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles & Publisher, Election Law Blog

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Last night, as word leaked out that the President was set to nominate Solicitor General Elena Kagan to the Supreme Court, I put up a post on my Election Law Blog noting that we know virtually nothing about SG Kagan's views on election law issues such as campaign financing, voting rights, redistricting issues, voter identification, and other important issues. I said, however, that just because the SG is likely to be generally liberal on issues related to election law (given that she was nominated by a Democratic president and served in two Democratic administrations), that did not necessarily translate into support for reasonable campaign finance regulation, such as the limits on corporate campaign spending in candidate elections, which the Supreme Court struck down in the recent Citizens United case.

I pointed to Dean Kathleen Sullivan as an example of a leading liberal constitutional law scholar who has written extensively against the constitutionality of campaign finance limits. (To that list, I might add my friend Bob Bauer, who is a staunch Democrat-and current White House counsel charged with shepherding the Kagan nomination through the Senate. He is a longstanding opponent of many campaign finance regulations.)

When I wrote those words last night, I did not know that SG Kagan had written about six pages on the constitutionality of corporate spending limits in candidate campaigns in a law review article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 464-472 (1996). Marvin Ammori, writing on Balkinization, read those pages and concluded (with some caveats, such as that a person's views may change after 14 years) that SG Kagan is likely a "defender of corporate speech rights" and therefore a likely vote with the majority in Citizens United. (Justice Stevens wrote the dissent in that case for the four dissenters.)

Having reviewed those pages, I am not convinced that we really know anything more about how SG Kagan would have voted in Citizens United or, more importantly, how she will vote as related issues come before the Court. Here are my reasons.

1. SG Kagan expresses concern in the law review article about the fact that campaign finance laws that say they are aiming at equalization might instead by incumbency protection measures, and for this reason, they need to be subject to strict scrutiny. That's a position that is very close to the position Justice Breyer stated in his Shrink Missouri dissent and in his book, Active Liberty. Yet Justice Breyer voted to dissent in Citizens United. He applies strict scrutiny, but sometimes comes out in favor of regulation. Similarly, just because SG Kagan believes these laws are subject to a careful look does not mean they are necessarily unconstitutional.

2. SG Kagan goes out of her way to see the equality rationale and the First Amendment as not incompatible in theory, so long as the incumbency problem/bad motive problem could be solved. (I'm much less enamored of intent tests to figure out the constitutionality of election laws, but that's an issue for another day.) This suggests, for example, that a corporate spending limit passed by voter initiative could be constitutional.

3. Even aside from the equality rationale, which SG Kagan abandoned during the briefing and argument in Citizens United, there are other rationales for upholding a corporate spending limit in candidate elections, including shareholder protection (which the SG pushed hard at the Citizens United oral argument) and prevention of quid pro quo corruption (something I'm writing about more extensively). So even if SG Kagan does not believe equality can be considered a compelling interest to justify regulation (something I don't think she actually says on those pages of her law review article), there could well be other compelling interests to justify the limits.

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So what do we really know about how SG Kagan would have voted in Citizens United? I'll stick with what I wrote last night: virtually nothing. I hope we will learn more at the hearings, though I think some ambiguity from the SG on the question could actually gain her some Republican votes and work toward the Obama Administration's goals of marketing the Kagan nomination as a centrist nomination.

[Image via Office of the Solicitor General.]

ACS recently hosted a press briefing on Christian Legal Society v. Martinez, argued before the U.S. Supreme Court today. In CLS v. Martinez, the Court confronts the question of whether the Constitution allows a state law school to deny recognition to a religious student organization because the group believes that complying with the school's anti-discrimination policy will compromise its core religious viewpoints. In this case, in order for students to be eligible to be voting members or officers of the Christian Legal Society, the students must affirm their commitment to the group's core beliefs and pledge to live their lives accordingly. Adhering to these core beliefs would exclude a variety of students from these roles, including non-Christian and gay, lesbian, and bisexual students, which conflicts with the school's open-membership policy for recognized student groups.

This case raises issues at the intersection of anti-discrimination and religious freedom principles that have tested courts, and led to conflicting decisions. Does the school have a legitimate interest in limiting the provision of public funds and benefits to student groups that agree to abide by the school's viewpoint-neutral, non-discrimination policy to ensure that all students have equal access to all school-sanctioned groups? Or does the school's policy violate a student group's rights to free speech, expressive association, and free exercise of religion? Excerpts from each of the four experts' analyses are embedded below.