Law students have difficulty writing answers to essay questions on exams. It's not that they haven't attended classes, listened and participated in the discussions, studied the material, and discussed it intelligently with their friends and colleagues.
The problem with law exams, in addition to being a different form of writing than a college essay exam on leading female characters in Shakespeare, for example, is that one is supposed to climb a flight of legal steps to arrive at a correct answer based on current case law. This is very difficult to do because the case decisions themselves seem to climb a haphazard flight of steps built by a drunken stair-builder. In fact they are a corporate product of nine minds plus law clerks assigned drafting problems. It would be difficult indeed for anyone, including a Supreme Court justice to predict the steps, and moves, that a decision will take before achieving a resolution.
Lawyers, of course, are paid to make predictions about likely results based on drunken stair-builders, aren't they.
Another big problem for law students is that the brighter they are and the more they've studied and know, the less they sometimes seem to be able to write a good answer. Perhaps it's because their minds quickly travel to the edge of known legal doctrine and they risk falling off the edge of the earth, which we all know is flat, I believe.
In seemingly uncharted territory, the student feels as though he or she doesn't really know much, if anything, about the law.
With that in mind, I thought I'd copy below, the thoughts of one of the brightest, most knowledgeable, Conlawprofs anywhere, a former clerk to a Supreme Court justice, and an acknowledged (by other Conlawprofs) expert on First Amendment law.
The question came up in a discussion among the Conlawprofs as to whether a state-sponsored public university could fire a professor for saying inconvenient things such as whether the 9-11 attackers had a good point and that the U.S. perhaps deserved the attack, which infuriated the public who pays his salary, and wanted him fired. Did the First Amendment protect him? Could the governor or the legislature pressure the college president to have him fired?
Here is an example of a super Conlawprof wrestling with a question as to which the case law is perhaps not as clear or well-known as in some other areas:
I would think that while private universities have First Amendment rights vis-a-vis the state and federal government, and while state universities might have First Amendment rights vis-a-vis the federal government, state universities would not have First Amendment rights vis-a-vis the state government that created them and has the power to run them.
(I'm pretty sure that there's a Supreme Court case holding that cities lack constitutional rights vis-a-vis states, but I forget the name.)
I can imagine contrary arguments, and I can imagine state constitutional arguments in whatever states might have state constitutional guarantees of independence for the university.
But that seems the likeliest, and most likely correct, result.
The professor offering this has done some useful things.
He's placed the problem in a context. He just doesn't say "First Amendment, therefore..."
He says that the problem must, in his view, be seen as occurring in a context in which the First Amendment (FA) rules may vary depending on the relationship of the employer of the actor (speaker)' to a particular government, state or federal, and whether the university which does the employing, hiring, and firing, is public or private. Those are four variables in one little (or not so little) problem.
The professor, who has read many cases, seems to recall one that has something to do with this problem, but since he's in an informal email chat type discussion, he doesn't spend two hours racking his brain and looking up what he thinks he recalls in order to provide a definitive answer. He just describes the state of his memory. Someone else can look up the law, or maybe he will tonight when he gets a chance if he's still interested in running down a better answer based on case law.
He throws out another thought at the end that might change everything by noting that there might be state constitutional guarantees of independence to universities (public, private, both?) that might override some power to fire inconvenient professors who speak out politically incorrectly.
You are thus witnessing a top Conlawprof exercising his brain, fund of knowledge, and experience.
There is what he knows, what he doesn't know, and the gray area in between.
He's in the gray area, the place where law students often find themselves. He's at the edge of his Earth. Is he going to fall off? I don't think so. He's provided a provisional answer that we all accept as subject to correction and demanding more work to reach a better answer. He's provided a foundation for further research. Along the way some other doctrine may be discovered that bears on the problem.
Perhaps law students wonder why they don't know more, or the answers do not come to them more quickly.
I don't think law students should get down on themselves for that. Usually they know plenty because they've been working hard.
Here's why they shouldn't get down:
The human brain, while a wonderful retriever of all sorts of factoids, seemingly at random and from long ago and even different contexts, is not a perfect machine, especially when it comes to not just retrieving, but relating, not facts, but doctrinal ideas.
Who knows why one doctrine should relate to another?
No one knows. These relationships we have to invent. They're not laws of nature, but of man. After we've invented the ideas and the connections, then we have to go over them constantly, otherwise we lose them.
This is one reason lawyers and law professors specialize. Concentrating more and more on less and less allows one to memorize most if not all of the doctrines in one confined area. Take that smart lawyer or professor out of this narrow area, and he, or she, is as at sea as the greenest law student.
Copyright, tax, maritime law, international law, immigration, bankruptcy, etc., are examples of fairly discreet bodies of accumulated law which have become specialized. Practitioners in the field master the doctrines of that field and leave the rest to someone else.
Why?
Aren't they smart lawyers?
Of course they are. They're very accomplished and well-capable of thinking creatively, and even able to invent useful, reasonable, fair, and just, new doctrine, when necessary.
Why don't they know it all?
Because the human mind didn't evolve, and isn't built, to hold it all. It needs to forget. The human mind, I believe, retains and uses what it constantly exercises. This is why we call it law, and medical, practice. You have to keep going over the same ground time-after-time, noting the variances as they occur laterally and vertically over time. Stellar athletes do what? They practice. You only see them on game day. They rest of the time they repeat ad infinitum.
You format a structure of the world in your brain and you work off that structure. In Constitutional law we alter the structure from time to time. In other areas of law, we change the contents of one box out of many, box by box.
The Navy teaches sailors how to perform a task on a ship. Then it drills those sailors incessantly to make sure they get it right, and can perform that task even if the ship is taking enemy fire. Constant repetition makes the doctrine familiar and workable even during panic time for ordinary humans. Trained soldiers and sailors are anything but ordinary humans.
The first time through the doctrine is tough for sailors and for law students. Once qualified, however, repetition is reminder, and the results much better and more reliable.
For lawyers, trying cases is the closest thing in civilian life to combat other than what police officers and fire-fighters do in a crisis. For doctors, it's surgery. Why are these high stress moments? Because anything can happen and usually does. The doctor, lawyer, police officer, and fire-fighter is then left to rely on all his, or her, accumulated training and experience to make something good happen when the risk is that everything bad is happening. He hopes, and is confident, that his trained mind will respond appropriately, with the correct idea or move at the right time, because he's gone over it all so many times. He also relies on checklists to avoid overlooking things, not all of which might be obviously related to the problem at hand.
More often than not, things work out when guided by trained professionals, don't they?
That's why we have professional schools, and drill and test.
WARD L. CHURCHILL, PROFESSOR, U. OF COLORADO
Here's an article on the controversy that raised the question about whether it's okay to fire a teacher for voicing unconventional opinions that piss people off. Here's another, because after I post a news source, it frequently decides to require registration. The professor's name is Ward L. Churchill from the U. of Colorado, in case you need to Google it.
If Churchill gets fired, we can call it the "pissing people off exception" to the constitutional guaranty of free speech, if you like, or maybe the "Hitler revisited doctrine" because people were sent to the camps there for speaking out, too.
Does it make Churchill's speech more understandable, or forgivable, if it turns out he's American Indian? Do Indians have a list of grievances about a mile long? Why can some people say politically incorrect things that others cannot?
Pissing people off is the price we're willing to pay for the free expression guaranty. No one ever tests whether it's real or not except people who piss off the established mainstream conventional school of thought. That's what art is, isn't it, busting the conventional categories. The trick is to let the man speak. The antidote to free speech that you don't like is MORE free speech. If the man's ideas make sense, people will listen. If they don't, they'll tune out, except for the lunatic fringe. Justice O.W. Holmes, Jr., had a term for this. He called it the marketplace of ideas. There's lots of ideas. Not all of them usable. Like unsold fruit, the bad ideas rot away, and we all move on.
Meanwhile, like a jarring new form of painting, what is most interesting about the controversy is the fact that there's a controversy. So we all look at the dust storm for awhile.
In the meantime, the question of whether the man had anything useful to say is disregarded while we all cluck-cluck over whether he can say it.
Why not skip the question as to whether he can say it and see if anyone other than him wants to salute what he ran up the flagpole?
That's not good enough. The outraged folks want him fired. That's how Conlaw cases get made.
Straw poll: Anyone here think the first amendment right of free speech and expression ought not apply to university professors at state run institutions?
How about this: Professors at state run universities may have a constitutional right to free expression, but not to a job at a state run university.
Does it make a difference that the speech in question can be considered "political?"
Suppose he were promoting, instead, sex toys, or the idea of kiddie-porn, that outraged people.
Would calling it "commercial" speech change your answer?
Does characterizing the "type" of speech permit greater limitations on the guaranty?
How important do you think the guaranty is?
If the guaranty doesn't exist for university professors, who does it exist for? Only people not associated in any way with a school or university?
Suppose the university is strictly private? Does that make it easier to fire the prof for opening his big mouth?
Or should the free expression guaranty prohibit punishing people for exercising their presumed constitutional right, otherwise it's an empty promise?
Suppose the provocative professor, to underline his point critical of the U.S. burned a flag at the end of his speech. At the beginning? See Texas v. Johnson (1989). That's the Texas flag-burning case that treats burning the flag as symbolic speech, protected by the first amendment. Stamping on people's symbols is one of the favorite things to do when you disagree with them. Recall the image of our troops and Iraqi people pulling down the statues of Saddam Hussein after the successful invasion of Baghdad by the U.S. Toppling icons is how you let people know how you feel about whom they once revered. It's an old game.
"My name is Ozymandias, King of Kings:
Look upon my works, ye Mighty, and despair!"So he said, and all around him were ruins...
[Shelley's famous poem appears below, on the continuation.]
One might usefully start the analysis with a case called Brandenburg v. Ohio (1969).
It is the lead case on what you can "get away with" saying. If you haven't violated Brandenburg, you can say it without being legally arrested or prosecuted or jailed.
Not all police officers have read Brandenburg, however, so be warned.
Well-run police departments, however, brief their officers on the idea that they exist to protect and defend the Constitution of the U.S., and that includes peaceful exercises of free speech and expression critical of the government and its policies and officers. Good police departments allow and protect the peaceful marchers from their violent opponents, like the message or not. Let the marketplace decide which ideas are will be accepted, not the cops. It also spares the city from damage actions for violating constitutional rights.
Whether you can lose your job over saying something controversial may be another question indeed.
There's a difference between government acting as a legislator and prosecuting you to put you in jail, and government as employer, or government as property manager. Government wears lots of different hats and depending on which hat, which law applies.
Suppose our naughty university professor here were a civil servant?
A police officer?
A state judge?
A federal judge?
Where would you start drawing lines?
I thought you said you believed in free speech?
Meanwhile, what would you say of a law that prohibited (with a $50 fine) the wearing of low-riding pants?
You probably thought this is one of those really stupid hypotheticals that law professors make up to torment students at exam time, or in class when they recite. You would be wrong if you thought that. There are a lot more legislators than Conlawprofs, and some of the former are dumber than some of the latter. Check this out. I wonder what "lewd and indecent manner" means, don't you?
See Cal. Penal C. Sec. 288(a) and the relevant CALJIC sections (California Jury Instructions,Criminal). Appealing to the lust or passions?
The questions in Con-Law are frequently more thought inspiring than the answers. Of course they do feed off each other, don't they. And make fertile material for a play or story. That is how the Hollywood Ten got blacklisted during the McCarthy Era, for writing thought inspiring radio and screen plays. Too thought inspiring for some. And too pink or red.
It's a constant struggle between the forces of free expression and the forces of conventional thinking that wish to limit it. The fascinating thing is the cast of characters, seemingly drawn from a Fellini movie, or the bar scene in Star Wars, who speak out, get jumped on, and then bring the cases that allow me to blog like this. Could I do this in Stalinist Russia? Or Hitler Germany? Or McCarthy's U.S. fifty years ago? Not without asking for a lot of grief.
Oh, the Fellini characters? Anarchists, Communists, Jehovah's Witnesses, Pornographers, Law Professors..., a veritable circus!
And over here we have Abortionists, Sodomites, the Gay Marriage group ...;
And over there we have people who think blacks and whites are equal and should attend the same schools, and those who think people of different races should be allowed to marry!
Look! Here are people who think they should be allowed to send their kids to German school, and Catholic school. And these Amish over here who don't think they should be forced to send their kids to high school at all!
The list of the politically incorrect of the day goes on and on.
Of course each of these claims, fought for so hard, is now ingrained in our constitutional law to the point where we take them for granted and wonder what the big fight was all about.
That's why I teach Con-Law, to show what the fight was about, and why it was worth fighting.
Not a bad thing to do, don't you agree?
***
And this just in, Feb. 9, 2005
An internet company called GoDaddy.com paid $2.4 million for a 30-second spot ad on the Super Bowl last Sunday. When the Fox Network called to ask if it would like to double its bet, GoDaddy.com said "Go Daddy!" and went for the second $2.4 mil.
But, according to George Raine of the S.F. Chronicle, a Fox executive ran into a group of NFL executives who saw the ad and objected to it.
The ad featured a buxom young woman, naturally, at a fictional "broadcast censorship hearing" at which her tank top pops a strap. Shades of last year's Janet Jackson, whose "wardrobe malfunction" at half-time at last year's Super Bowl, bared a breast for only about an eighth of a second, alas.
That netted 543,000 complaints to the FCC, Michael Powell, Chair, since resigned, who fined the network $550,000, or about a buck a peep, plus tax. That's a lotta dough for only one breast.
After the network exec heard of the NFL objection (the NFL was trying to distance itself from any reminders of Janet Jackson's reasonably attractive breast), the second ad was pulled, and GoDaddy is unhappy, even though it has reaped a ton of secondary publicity from all of the newspaper commentary.
An interesting reaction from Millie Olson, of Amazon Advertising, in San Francisco:
Why is it, when you try to defend the First Amendment, you always find yourself supporting something sophomoric or worse? Like the Nazi march through Skokie?
That and Fellini.
Well, as I was saying, if you want to protect the center, you have to protect the fringe, don't you, lunatic or otherwise, or else the whole fabric unravels and you're left with nothing. So you fight for the fringe as though you were fighting for the center, which you are. And of course you take a lot flak because on the face of it, it appears to the uninitiated that you're only interested in the Fellini-esque, the Nazi marchers, and the flag-burners.
This reminds me of Father Niemoller's prayer, to the effect that,
in Nazi Germany when they came for the Communists, no one lifted a finger.
And when they came for the Jews, no one lifted a finger.
And when they came for the Trade Unionists, no one lifted a finger.
And when they came for me...
no one was left...
First amendment law takes pains to provide a cushion of protection around even questionable speech to avoid inadvertent penal violations or civil damage penalties. That's why newspapers are allowed to accidentally defame innocent people, even negligently, provided their negligence didn't amount to reckless disregard for the truth or an intentional lie. It's the price we pay to be allowed to speak at all. The Court allows a cushioning zone to protect against any chilling effect that might make people hesitate to express themselves freely for fear of being punished by government.
One of the tools the Court uses to strike laws and ordinances that endanger expression is to see how closely tailored time, place, and manner regulations are so that they aren't so broad that they threaten to wipe out protected speech. That would be an overbroad regulation, a broom that sweeps too wide.
By contrast, if a regulation is so specific that it threatens only one of many sorts of potentially offensive speech, the Court might deem it not content-neutral, but too specifically targeted, such that only some offensive speech is restricted and not others. The rule is said to be underbroad. The broom is too narrow.
And when that doesn't work, there's always the vagueness doctrine, by which it is said that the actor is not sufficiently put on notice of what is prohibited, or the speech-police have too much interpretive discretion to selectively prosecute according to how little they like the message.
I mentioned above that government wears different hats: legislator, enforcer, property manager, and employer. Government may be allowed to act in one capacity in a way that it cannot act in another, such as rule-maker or enforcer. Certain restrictions on speech have been permitted to keep the speech flowing, such as time, place, and manner regulations. One has to take care that a TPM restriction isn't a subterfuge for suppressing content of speech.
When the judge tells counsel to speak one-at-a-time so that counsel can be heard, this regulation of speech is seen as promoting freedom to express oneself. Same with regulating parades to keep opposing groups from killing each other or destroying merchants' expensive plate glass windows.
The above, including especially the teaching of Brandenburg, represents a tiny cross-section of basic free-speech law. There is a great deal more, with a lot more questions than answers. Great fun, actually, to try to figure it out. Great minds such as Holmes, Hand, and Brandeis have truly struggled to come up with what the country and the people require to survive.
Expression, after all, comes before all.
Without expression, you can forget the rest.
We can relate this protection of abject dissidents under the First Amendment to a larger idea that we've discussed more than once in class.
It's the principle that I'm going to call of
"Ringing the changes from the specific to the general and vice versa."
Ringing the changes has two meanings. The first refers to bell-ringers who progress through a series of musical passages, each a development of the previous. The second refers to a confidence game in which the con-man double-talks a cashier into cashing a twenty-dollar bill and giving a ten, a five and five ones in return. You'd have to watch it done for real, or on yourself, to believe it.
As I would apply "ringing the changes" to Con-Law, I would start by explaining this. We're all in favor of liberty, equality, and free speech, in the abstract. Those terms represent the highest level of generality. If asked, however, whether you think it proper, meaning protected by liberty and equality , for gays to relate sexually despite laws to the contrary, or to marry for reasons of tradition, you might pause or disagree. You agree to the generality, but not to a specific case. "Oh, that doesn't count," you might say.
Couching a right in terms of its specifics is a way of making it seem rediculous and easy to deny, especially if put to a popular vote. Much of our constitutional law would not exist if each case were put to a popular vote. Our cases take a lot of hard thought to resolve and the country often has difficulty accepting the specific holding, although not the general principle of liberty or equality.
Same goes for free speech. We're all in favor of that. Soldiers die for that. But soldiers would not like to be told they also die to allow Nazis to march through Skokie, which is an actual case.
In this country it is not a crime to possess or wear or trade in Nazi regalia. It is in Germany and France. Yahoo or Ebay ran into a problem of online sales of same over the internet in Europe.
If asked do you favor the right of Nazis to march, to wear Nazi regalia, and to deny the Holocaust, you might be tempted to go for the bait and say "Of course not, I'm a loyal American," which will turn out to be a classic Con-law Red-Herring.
I cut out of red construction paper a large red fish, marked eyes and gills on it, and attached it to a slender wooden dowel by a string. I brought it into class after exams one semester to make a point about not going after red herrings. Those are apocryphal fish supposedly dragged across a trail to throw the bloodhounds off the scent. I wave it around when I see a student going for the wrong bait. We have a little fun that way and I make a point, as Steve Steinhoff will be glad to explain some day.
What you must say, if you wish to maintain existing law and freedom of speech, is to ask whether there is, or will be, a Brandenburg violation. Absent that, the Nazis march, the armbands and Klan hoods come out and are worn, except if intended to intimidate, see Virginia v. Black (2003, cross-burning), and people can deny the Holocaust, God, Democracy, Jesus, Evolution, that the Earth is round, whatever. Or they can profess those or their reverse. We don't really care. It takes a lot of dissonant chatter to make a nation like ours. Government provides us a safe framework in which to ramble about in word and deed so long as we don't hurt the next guy, and I don't mean by uttering things he disagrees with. That you can do. Opinions are freely utterable. Opinions, as was importantly said (Terminiello?) can never be wrong. Only assertions of facts can be wrong. That's why you don't want to sue a political columnist for denouncing your candidate for being a scoundrel and a lout. It just may be opinion even it you think it looks like an assertion of fact. Different if it is an assertion of fact, no question.
In First Amendment law, the appellate courts are free to independently reweigh the facts in a defamation action. Bose, the Bose Speakers Company case. Appellate courts cannot so do in murder cases where people die of lethal injection, but they can in free expression cases. Which do you think is more important, life? Or speech?
Perhaps speech is life.