that way. i am very disappointed, as i think you are -- when i was arguing cases, i like to lock up the steps. it was an inspirational teacher. i am berri said we had to do that, but in good conscience, i did not have any choice. >> good morning, mr. chief justice. i am from columbia, south carolina. what are you going to read this summer? what's the first book on my list is a book about florence, which has been recommended. i will be doing my teaching in florence. i was told it is a good introduction. that is the first on that -- on my list. >> good morning, mr. chief justice. i am from duran, north carolina. judge harry edwards suggests

that our judiciary all levels and be practicing bar are, unfortunately, to disconnect it from our academies. i want to know your thoughts on that. do you agree with that or do you think the relationship between the practicing bar and our law schools -- is there some impact on your structure as it relates to the future of our profession? >> first of all, judge edwards is a favorite of mine. he helped me greatly when i joined the court of appeals for the d.c. circuit, not only as a model for a judge, but also in a wide variety of areas. he came in the first week i was there and said he was going to teach me how to use a laptops to let me stay connected with the court where ever i was. i said, "thank you very much,

the judge, but i am not up to speed on the technology and would rather not worry about it." he said, "i did not ask you if you wanted to do it, i told you you're going to do it." [laughter] he was tough to argue in front of. i am glad he did what he did because it brought me up to speed. he and i are on the same page on that point. there is a great disconnect between the academy and the profession. pick up a copy of any law review that you see. the first article is likely to be the influence of kant on 18th century bulgaria or something. which i am short it was great interest to the academic that ripped it, but is not of much interest to the bar.

-- that are towrote it, but is t of much interest to the bar. it is not of any particular help to members of the practicing bar or judges. at the same time, we are not looking for vocational guidance. this is how you fill out the form for an appearance -- but i do think it's the academy is interested -- if the academy is interested in the practice of law and the development of law, they would be wise to stop and think is this area of research going to be of any help to anyone other than other academics? it is their business, but people ask me what the last of law review article i read was and i have to think very hard.

>> chief, we talk about the different segments of the profession, one thing you sometimes hear is that a hot bench is taking over from the bar in terms of oral arguments. there are so many questions from the bench that lawyers rarely get the chance to speak. with nine people wanting to get their questions in, have -- has the oral arguments squeezed the lawyers? the studies have indicated that over the years the time that kelso gets to speak has diminished and the -- council gets to speak -- gets to speak as diminished. >> my views on this have changed. [laughter] no, we are sort of in our office

when we are on the bench. we are asking questions we think are important. it is a limited amount of time that we have. but frankly, i think we have gone a little bit too far. there have been moments, particularly this past term, when i thought we were not really being fair to the lawyers and not necessarily being fair to our colleagues. too many times one of us would ask a question, one would start to answer, and another with shop in with perspective on the question or changing the direction of the dialogue entirely. there are some areas where we are trying to do things. for example, i feel it is not appropriate -- we have a like that goes on when lawyers have five minutes left. that means they have five minutes left for rebuttal. i do not think it is fair for us to start asking questions.

it is hard. i am probably one of the prime offenders, but i do think we need to make a little bit more of an effort to give the lawyers time to give some kind of answer and to make sure we are not stepping on our colleague's questions. it requires a very expert counsel -- someone who is good can find a way to focus the court's attention. when they are bombarded with tipper questions, respond in a way that allows them to take control of the argument. i remember when i was practicing before the court. justice stevens asked a question. before i could answer, another justice ask me one, and then another one. i answered the most recent question and then the next one. i was very proud of myself. i said, "justice stevens, i like

to return to your question." justice stevens just smiled. i was standing there and suddenly realized i did not remember what his question was. [laughter] i had a good idea, but it did not work out. i think we need to do a better job of letting the lawyers participate in the dialogue. by the way, we have an extraordinary bar. >> it is a difficult thing with lawyers are trying to pick between which justice to answer or which judge to answer when the questions come. >> it is a challenging part of the practice. >> further questions? yes, ma'am. >> [unintelligible] >> a lot of different ways. i do a lot of work in my chambers orally. that is a holdover from my

practice days. i like to sit down with them. i do not do bench memos. they read the briefs in the case, i read the briefs, and sometime before the argument, we sit down and belts ideas off each other. they take one side and i take the other. usually as a result of that process, additional questions will come up and we will do further research on an issue. in fact, we have portions of opinions and they get 10 days to do whatever i ask them to do. then we have a very extensive editing process. our work -- we usually go through about 25 drafts of opinions, a change in this part here, changing that part there, and looking at it before we sent something around to the other members of the conference. they spent a lot of time on the process. i do not think i am revealing

any secrets. i do not read all the petitions that come in. they participate in a pool. most of the other justices will write a memo on each one and share it. in that respect, i will ask for a little more work from one petitioner or another. through all of that, they work pretty hard. >> this gentleman has been standing up for a considerable length of time. >> good morning, mr. chief justice. ron davis from winston-salem, north carolina. one of the things our firm has grappled with is social media. it impacts ethical obligations that we have. its impact client confidentiality issues. i figure if we are grappling with those kind of issues, it is probably more acute in the court

system. i was just curious how the supreme court has dealt with this phenomenon. i had this image of one of your clerks tweeting from the supreme court about what is going on. it is it -- is it on a justice by justice basis where had you enacted certain policies? >> i sit down with the incoming clerks at the beginning of the year as soon as we get back and go through a number of things they have to be aware of and that is one of them. i tell them they obviously should not be tweeting about what they are doing or whether they have websites or whatever. a lot of this is an advert in. they think they're working really hard this week and getting ready -- so many people can look at what they are saying and put two and two together and figure out what their boss is

doing. unintentionally, because some time -- sometimes reveal confidences. that is very dangerous. i also appreciate that it is a generational thing and the idea that they are not being connected in a particular way could be problematic for them. it is also a generational thing , -- some members of the court are more into debt than others. i do not think any of us have a facebook page or tweet, whenever that is. [laughter] technology is making inroads. when we are traveling, it is easier to have some of us read briefs that are electronically available. different people have a

different comfort level. in the courts in general, it is a challenge in a lot of areas. it is just something we are going to have to deal with. it is not limited to that. the impact of the new technology on the subject of law is significant, whether it is antitrust law -- that is nothing new. when you think of the supreme court's dealing with wiretaps when wiretaps for a new thing. that is not covered by the fourth amendment. it is pointed the a great challenge for many of us to try to keep up with the new technology. it is one of the great things

with the law clerks. denote how these things work and what it means. -- if they know how these things work and what it means. >> one of the things we have seen at the conference is accessibility and transparency with the courts. one thing that keeps coming up is a tv cameras in the courtroom. obviously, the supreme court has made its proceedings much more available through audio recordings of some of those major cases. do you have some thoughts on television in the courtroom and television at the supreme court for arguments? would be very interested in that. >> we are having a pilot project on that right now under the guidance of the judicial conference. in terms of the lower courts, the experiments with television in the courts of appeals -- we

will see what the results of that are. judges in general, the judiciary, and the supreme court -- we tend to move slowly. those of you who have been to the court know that one of the architectural motifs at the base of our lampposts is a turtle. that is to indicate that we moved slowly but surely on a stable basis. we have made some changes. there used to be we did not release transcripts of arguments. now the release them within a half hour. it used to be the audio recordings were released at the end of the term. now they are released at the end of every week. we are moving in a particular direction. cameras present all sorts of challenges that these other areas do not. i will not go to the whole

debate. it is a fairly common one. you worry about the impact on lawyers. i worry about the impact on judges. i do think the considerations of the supreme court are different in many respects from the considerations -- >> you may judges will ask even more questions? >> i do that is exactly right. unfortunately, we fall into grandstanding. i am a little concerned about what the impact would be. we talk about it from time to time. it is something we consider. other courts around the country have had experience with it. the supreme court is different, not only domestically, but in terms of the impact worldwide. i will be very interested to see what the results of the pilot program in the lower courts look like. i am sure will take those into

account. movement will be gradual. that is the nature of the court. it is a good thing. you do not want us jumping into things until we have given them a lot of thought and deliberation. i hope the way society is these days, things do not happen until you see them on tv. the supreme court is different. i have talked to people that have been in the senate and they think that televising senate debates moved them. it is always one person standing at the podium and nobody else there. it did not used to be that way. >> when you think of the great speeches the daniel webster gave and the great arguments that daniel webster gave and the great speeches of abraham lincoln gave -- they live to the ages, but they were not televised. >> that is right. other government institutions have opened up, but it will be

interesting to note what government institutions people think function better now that they are on television. we are the most transparent branch of government. everything we do as an impact on the public. you do not see the deliberations. you see our work in public. our decisions are out there. the only impact we have is our opinion. that is out there. you see the materials we looked at in the breeze. what is not public is our internal discussion in conference. anyway, the long and short of it is it is obviously an issue we have looked at. we'll see how the pilot project goes and take it from there. it is a concern for some of us. i had been sharing my views.

>> i want to thank you so much for being here. i cannot tell you how much it means for us to have you as our guest and that you talk with members of the audience and have this conversation to begin our supreme court review. i hope you will return every time the fourth circuit as a conference because you are always our number one guest. it makes a wonderful occasion for us. >> thank you very much. perhaps you will be surprised if that will not stick around for your review of our term. [laughter] by the way, these are not the academics writing about immanuel kant. these are the good guys. maybe they will give us a break. [applause] thank you very much. it was a lot of fun. >> thank you very much. >> next, a review of this year's supreme court decisions.

after that, at a memorial for lawrence eagleburger. then, another chance to see that interview with chief justice john roberts. >> tomorrow on washington journal, the president emirates this of the council of foreign relations discusses featured reductions in afghanistan. linda feldmann examines the 2012 republican presidential candidates. david wasserman looks ahead to redistricting and its impact on the states and congress. washington journal, live at 7:00 a.m. eastern on c-span. quite the house recently debated and voted on two measures related to u.s. military involvement in libya. look for continued debate in the house and senate at c-span's congressional chronicle, a comprehensive recourse -- top

rancid resource on congress. c-span.org/congress >> next, law professors review the major supreme court decisions at the fourth circuit court of appeals conference held this weekend. the panel's discusses the impact of the supreme court. the discussed court cases involving freedom of speech and the first amendment, federalism, and campaign finance. this is just over two hours.

>> i hope you will realize that we are being very selective in our coverage. it is not possible to be comprehensive. not even all the important cases will necessarily be talked about, but we hope we take enough of them to give you some sense of what the court has been up to this year. we will try to bring the train in on time. we will conclude comfortably by noon today. we have a very distinguished panel. i am delighted to have with us heather gerkin. she is nationally known for her work on election law and democratic theory. we also have michael mcconnell, the richard francis professor at stanford law school. he is a former 11th circuit court judge. he served in that capacity before he returned to stanford.

neil seagel is joining us. he is professor of law and political science at duke university law school. he served at one time as a law clerk to judge wilkinson before he went on to a clerk for justice ginsberg at the supreme court. finally, we have the john h. watkins professor at harvard who is a former law clerk having clerked for the d.c. circuit and for justice scalia at the supreme court. all of us want to change the fourth circuit for its hospitality. you could not have been more hospitable or more gracious. we are grateful to you. let me take a few minutes as we begin our discussion to try to set the context of the roberts court.

is completing its sixth year this week. i was thinking about the time that passed from the year that earl warren, 1953, became chief justice and the time nine years later when the warren court really came of age when felix frankfurter left the court. i was -- it was in the mid-'60s that the warren court handed down many of its landmark decisions. it is interesting to note that about the same period of time passed between when william rehnquist became chief justice and the time in which the rehnquist court came of age, roughly around 1995. the benchmark that year was u.s. vs lopez, the first time the court struck down an act of congress on the grounds it had

exceeded its congressional power. the rehnquist court of the '90s seem to be coming out swinging on areas like federalism, church and state, and some others. this nine year period may be coincidental, but at least me to believe -- makes me think if we are in the middle of a nine year span when the roberts court will do something we could talk about as a historical period on the court. it is a 6-year-old court. i was looking at how six-year olds behave. here is what the book says. "your six-year old is a lively creature -- dynamic, energetic, and enthusiastic, but one whose life is not without complications. his biggest problem may be his

two-way nature. he may be beautifully -- beautiful and ugly one minute, but typical and quarrelsome the next." that is the six-year old. i do not know at that characterizes the roberts court at age 6 or not, but we will find out. during the time the robbers court has been in being, the first term i will not even mentioned because the court was not fully complete until 2006. but by the 2006-2007 term, you begin to see more conservatism on the court, clearly from justice alito replacing justice o'connor. holding up the partial birth abortion at, the seattle and legal school cases, taxpayers are not having standing to challenge a white house initiative -- those are samplings of cases that came down in that term that began to give one a sense of what the

roberts court might be like. the next year, the 2007-2008 term, you can see what the press likes to call "theological slips -- "ideological slips." biggest winatives' was a 5-4 opinion striking down the gun lobby in d.c. in kennedy vs louisiana they dealt with the death penalty of the rape of a child. the 2008-2009 term -- commentators like to put a label on courts. people were talking about "incrementalism" or " minimalism." the court was going step-by- step. an example would be the new

haven firefighter's case. it was decided on a 13th amendment question. another example would be the northwest boston case involving clarence under section 2 of the voting rights act of 1965. that was the 15th amendment question. the pattern was emerging by the falling term, 2009-2010. that was the term before the present term. the conventional wisdom by that point had become what the press said was "a liberal brlock vs a conservative bloc." that is a pattern use all in cases like citizens united, be famous campaign finance case, mcdonnell bursa's the city of chicago -- mcdonald vs the

city of chicago. let me put several generalizations on the table and we will see whether they stand up or not. i invite my colleagues to agree or disagree as they see fit. first is the conservative trend in the court, the importance of alito replacing o'connor on the court. someone did a study of the 44 justices who sat on the court since 1937. the six most conservative judges -- four are still serving on the present court. that report said roberts, alito, thomas, and [unintelligible] there have been some results that give the other way one case involving detainees -- i mentioned kennedy vs. louisiana. i think you can argue there is

more of a correlation? there used to be between a justice on the court and the appointee on the court. one is struck by the idiosyncratic behavior of justices like black men, suitor, or stevens who turned out on the court over a period of time to be different from when they were first reported. it seems to me that is sent era that is gone. people can find more predictability in the behavior of justices in terms of what you might expect when they came to the bench. in part, i think that is the fruits of the debate going back to the reagan administration when the reagan justice department clearly had more of an agenda of the kind of people that would like to see on the supreme court. thirdly, i would assert that judicial activism is not dead. we can spend already discussing judicial activism, but whatever

it means, we have a general sense of it. the warren court was famously activist. to the extent you see activism now, it seems to be on the core's other wing. judicial activism, i would say, is still with us. if it was a term of activism or animals and, i think it may have passed. -- or at incrementalism, i think it may have passed. is it appropriate to call the court the court of the chief justice who normally leads it? the previous term chief justice roberts was in the majority, something like 92% of the time.

that is more than any other justice in the court. justice kennedy holds an important role on the court. kennedy is a more conservative swing votes than o'connor was before. that seems to have made a difference in areas of abortion and race. changes on the court's left, when stevens left the court, i think, in many ways, he emerged in recent years this sort of moral and tactical leader of the more liberal wing of the court. the years have certainly seasoned his ability to play that role. his departure leaves the question will someone step in and fill the void? we now have justice so meyer -- sotomayor and kagan. will they pick up the torch or what?

the pace of oral argument has picked up. it is faster, quicker, tougher than it was 20 years or 25 years ago. it is notable that justice sotomayor and justice kagan are prepared to leap right in. justice sotomayor has been certainly. thomas has become, to me, one of the more intriguing members of the court because he seems willing to reconsider any rep -- any president, however old might be, no matter how long it has been around. we know justice scalia's role as well. justice alito is also emerging

as an interesting member of the court this a high correlation of agreement in the voting patterns of the male members. we will be hearing about snyder vs phelps this morning. it was eight-one where justice alito was the lone dissenter. he will come to have his own voice on the court. finally, i want to live on the table the question that has been talked about in the press and commentators -- is the thomas scored a pro-business courses? -- is the thomas court a pro-

business core hotwircourt? it was argued last year, perhaps mistakenly, but one case was an invitation to corporations to pour money into politics. business interests may have been hardened by the decisions this term. the u.s. chamber of commerce certainly involve itself in these cases. they must have liked the at&t case of california where the use of standard form contracts will be made easier for corporations. wednesday, this week, there were two cases where it drug companies would have liked the pre-emption case.

you can take the whole still matter to be pro-business. but the other side of the picture has to be considered with cases with the discrimination cases where the court has been in favor of employees challenging -- saying that an oral complaint will do, not just a written complaint, expanding the definition of what one means by retaliation. these have been meaningful to employees. and the pre-emption cases did not all fall in favor of the businesses who favor it. finally, a case that the chief justice wrote involving -- concluded quite clearly that corporations do not have a personal right of privacy in cases involving freedom of

information act. if you like the flavor of roberts opinion, that is a good one to read. we have a lot to talk about this morning. we have some very good people appear who are primed to go with it. we had thought about adding to our agenda this morning some discussion of the health care litigation which is now working its way to through several circuits. we will defer that, not try to take that today. maybe the next panel that meets two years from now may have something of the supreme court to talk about by then. having left that off the table, there is still plenty to talk about. with those general fox to set the stage, we will proceed through major areas. we are not trying to do everything point we hope that what we do have to say will be of interest to you. we want to start out looking at

some administrative law cases and also perhaps privacy and state secret cases that came down this term. adrian, would you like to pick up in that area? >> thank you very much. i want to thank the fourth circuit host to giving me the chance -- for giving me the chance to participate. i think the administrative law part of the docket is always the most thrilling part of the supreme court term. maybe some of you may not initially see it that way, but i will try to win you over. to identify some administrative law principles that have emerged from the term as winners, some that have emerged as losers, and one very important one whose status is now under a bit of a with of the's start winners. the major winter was the chevron doctrine. it expanded its empire even

further. the remorseless expansion continues. and we will look at the treasury department and the taxing statutes. it was held that chevron supplies the governing standard for review of treasury department rules. along the way, the opinion displaced an old president beloved by tax lawyers called national muffler from 1979. the chief justice wrote in very strong and striking terms of that the factors in national for work irrelevant. he said that whether the agency has been consistent or inconsistent in its interpretation is not relevant for chevron purposes. the antiquity of the regulation and whether it was enacted contemporaneously with the statute are neither here nor there. it is immaterial whether the regulation was prompted by litigation or not.

and it is immaterial whether congress's delegation of authority was general or specific. this is a very robust version of chevron with very large muscles. i think that the chief justice's approach will have broader implications for the future. what is striking is the rationale the the chief gave for this. he said the main one was the intrinsic value of uniformity in federal standards of judicial review of agency action. he also mentioned agency expertise given the complexity of the tax laws. there is something missing here been had there is something notably absent. the political accountability rationale for chevron, which, in its original formulation, said that presidential administration would enhance the democratic character of regulation through

the electoral connection. i think it makes perfect sense to downplay the accountability rationale for chevron if the court is interested in it increasing the uniformity of federal standards of judicial review of agency action. the reason that makes perfect sense is that lots of the court's cases and cases in the circuits involved regulations promulgated by independent administrative agency like the federal reserve and the fcc. on the accountability rationale would have a hard time covering those cases because, at least in theory, the accountability to the president of an independent agency is attenuated so the deliberate omission of the accountability rationale suggests to me that the court is very serious about tidying up

judicial review of agency action under unitary powerful chevron framework. another conspicuous winner of the term was auer. it is deference to an agency's own regulations. to case -- two cases, the court referred to interpretations of agency regulation by the agency as strongly underscored. mostf the term's ambitious theoretical concurrences, perhaps, was issued by and justice scalia in the top american case. he said he has come to doubt whether our difference is even constitutional. for us administrative lawyers, this is a big deal.

it is part of the ordinary tool kit of administrative law. if it is unconstitutional, that would be big news. justice scalia said that it seems contrary to fundamental principles of separation of powers to permit the person, the agency, who promulgates a lot to interpret it as well. and he drives that rationale from an article by my friend and colleague john manning. all this puts me in quite an awkward position, having clerked for scalia and being john's friend and colleague. i find the argument quite and convincing and i want to tell you why. i think it sweeps far too broadly. it sweeps far more broadly than the limited context of auer anyway. most agencies promulgate an interpretive rules. if the fusion of lawmaking and -- and to bring authority is constitutionally suspect, then the great bulk of the

administrative state is suspect -- if the fusion of lawmaking and long-administrating -- law- administrating bring of 30 is constitutionally suspect, then the great bulk of the aid minister of state is suspect. the main consequence, i think, would be to encourage substitution at the margin from regulation to simple case-by- case adjudication of ambiguous statutes. the state would have every incentive to switch to that. if we are worried about uncap

agency discretion or something like that, that outcome is plausibly worse than a rigid and more agencies pass regulations and then get our difference for them. in any event, no other justice joined his concurrence in talk america. that seems to concur auer's court.l let me mention a clear loser from this term. besides national muffler, the other clear loser was the turn tenery console.- the an agency -- the tenery principle. several decisions from the term were very relaxed about the

prospect of post-top russell mobilizations -- post-talk rationalizations. i think this converts the principal from something like the role of resumption to an ad hoc consideration or the agency has taken a deliberate position. it may come in a letter. for now, that logic is confined to the auer context -- the approach is confined to the auer context.

would it be possible to adopt the same approach on straightforward judicial review of agency action situations? we should watch to see whether it spreads to other domains here in this may be a real innovation in administrative law from the roberts court. finally, a crucial administration law doctrine that has been a drizzling cloud after this past term is the me doctrine that tells us when to apply chevron in the first place and has been a source of major controversies over the past 10 years in administrative law. we have had some good moments in the past term, but also some bad moments. a good moment was that mayo did take it as a working framework to see if chevron applies. on the other hand, there were

least 3, 4, or five bad ones. the intention with the emphasis on uniformity in federal review of agency action, a major rationale for mead was to taylor deference to variety, which is to have flexible applications to legal interpretations. it emphasized the need for uniformity of judicial standards of review. i think mead starts out with a strike against it. all this broke out in the open at the oral argument in chase bank. mead had seemed to say that an

informal procedure would not get their friends or my connected deference or was at best suspect. what agencies needed to do was informed there interpretations. several justices at the oral arguments said we cannot do both things. we can both do mead and auer deference. we had a two unanimous votes to that effect. what happens to mead in that case? there is not one word about mead in the opinion. i think that is bad for mead. if people are not talking about you or at least sometimes not

talking about you, that is mulling a good thing. a second -- that is not a good thing. a second ominous point is that maybe mead is not consistent, but we are not sure that we got it right in mead any way. i am not sure who "we" is, but if it includes justice kagan, i could signal a shift. a poll theote to position, sotomayor does not think it is a necessary to discuss mead, i think there is still in question whether it will still be the law five years from now.

it is under a cloud. >> i just wanted to jump in very quick way. all of these types of difference and so forth may strike a lot people in the audience as thrilling. i think the technical term for this is a snooze. i think they are very important because it is argument over these questions of difference in which the very idea of separation of powers and the rule of law are worked out in the context of the administrative state. i would like to at least maybe cautioned against assuming that justice scalia's new campaign against auer differences over just because he lost this particular term. justice scalia is a very smart guy and he is very persistent.

i remember it when he first introduced his campaign against the use of legislative history in ordinary and statutory interpretation. it seemed bizarre and i do not think he had any other supporters at the beginning. i would not be surprised if his critique of our deference -- of auer de france will gain adherents over time. i the thing that it has a very important grain -- i do think that it has a very important grain of truth to it. when a single body does both promulgate a lot and interpret the law, the rule of law is over. the separation between law interpretation and lock promulgation is absolutely essential to the law having some independent integrity. would makea's view

things worse because it would induce agencies to engage in more activity on a case-by-case adjudication. that may be so, but i think there are good reasons why, over the past 50 years, agencies have not found case-by-case adjudication to be an effective way of asserting power. i think a return to separation between rulemaking on one hand and adjudication on the other is something that we should applaud ending courage -- we should applaud. scully is probably not right that it is unconstitutional, but -- scalia is probably not right that it is

unconstitutional, but that it does tread on some constitutional powers may be right. >> if you found the former generation -- reading john locke and "the social compact" and the like, i think they would have brought up the adjudication principle. also the revival of federalism and the rehnquist court. in the 1980's, he was the lonely voice in the wilderness. he and others fanned federalism back into effect as a constitutional part of the american edifice. what is the prospect we will see any resurgence of the non- delegation doctrine? it seems to have been dead and buried for such a long time. i do not sense any interest in the court to revisit that issue. do you think that the sooner the issue you're talking about the so -- you're talking about this morning might force that? >> we have long and complex views on this.

first, i disagree that the non delegation doctrine has original list foundations. if you look at the legislation passed in the first congress, it included five or six delegations that, today, we would think would blank check delegations to the president to do various things. in my view, the non-delegation doctrine is a late-19th century creation by lawyers anxious about the nascent the administrative state. that experiment lasted until the 1930's and then basically collapsed. it shows no signs of revival. the non-delegation doctor leads a ghostly existence with people talking about it all the time, but it does not manage to by anybody.

even justice scalia has written one of the most sweeping modern opinions upholding the delegation -- a case called white men -- and he says he sees no prospect -- called equipmenw hitman -- and he says he sees no prospect for it. if mike and i have a disagreement, it may be a productive one. i think the last -- the lessons of the last 50 years is that they're sensitive to changing incentives for substitution between rulemaking and adjudication. in the 1970's, when the court, in various decisions, increased the benefits of rule making, then agencies engaged in more rulemaking. i suspect that, if the court somehow got out -- got rid auer

difference, then agencies would participate in more adjudication. >> thank you. i want to move now to the first amendment cases. it was a robust part of the docket. heather and mike respectively will take up some of the major cases. i have asked heather to think about the public finance case out of arizona. and also, heather will have something to say about snyder vs phelps, which was one of the headline grabbers of the term. once we have talked about those cases a bit, we will move on to mike and talk about some of the other important first amendment cases on the docket. heather, may i ask you to drop in and start that out? " sure. how want to thank you for inviting me. -- >> sure. i want to thank you for inviting me.

if you were thrilled with adrian's then minister of law decisions, fasten your seat belt current the first amendment decisions are the blockbusters this term. macomish is one of those that we are waiting for. this is a case involving the challenge to arizonas public finance system. if this challenge succeeds, a number of state financing systems may fall with it. if the court rights broglie, financing systems across -- rightwrites broadly, finance systems across the country are in jeopardy.

a publicly financed candidate is eligible to receive additional funds in arizona if his opposition outspends him. but the term "opposition," that is not just the candidate he is running against, but all the independent groups who are running ads on his behalf. this law was challenged on first amendment grounds. election law is the sex, drugs, and rock-and-roll of the first amendment. the one that the district court, but lost that the ninth circuit. it does not limit any expenditures. therefore, there is only in limited burden competition for first amendment rights and they found that the statute was constitutional. a lot of the briefing in the case was devoted to one decision.

pulled for political junkies, you will know that this is the millionaires amendment case. mccain-feingold had a position that had a limit when opponents were so financing their election. if anything, this is an easier case than davis. the millionaires amendment only allowed the publicly financed candidate to raise more money. in the arizona scheme, the publicly-financed candidates automatically gets the most funds. they have the most compelling facts. one of the candidates in the case was running against three publicly financed candidates. so every time he raised $10,000, $30,000 appeared on the other side to oppose him. in any -- in many ways, the two sides have been utterly

unable to find common ground. that is because they begin with a different premises. one side sees substantial expressive dimension to both contributions and expenditures and the other side simply does not. it is too crude to boil down the debate to slogans like "money is speech" or "money is money." nevertheless, for the past 10 years, the only middle ground that has been found has been to stick buckley vs. valejo. the problem is this. no one admirers buckley. very few people think it was even close to right. so to allow the court to cobble together a majority, it has not helped build a common

intellectual framework. in paris and macomish -- in davis and macomish, in a petitioner's summary, they begin with a great anecdote when janet napolitano was running for governor. she pulled her upon the side and she thanked him for his fund- raising efforts. he had it fundraiser that raised $750,000. she got $750,000 in response. she said, i am quite certain that i am the only democratic governor in the country that george bush held a fund-raiser for. just as kagan said, it seemed

like the system promotes more speech all-around. that is a core problem in campaign finance. the justices cannot agree on the basic premise of the doctrine, no balancing test, no choice about the level of scrutiny that will bring agreement. whatever the results in this case, the doctrine will remain highly unstable going forward. this is not doctrine moving toward consensus, but a death match between two competing points of view. i am tempted to quote harry potter -- neither can live more either survive. some of you remember there are other -- there is another finance case called citizens united. the press has an entirely missed the significance of that

case. in the arizonan briefing, it is confirmed. the press had told us that citizens united give corporations the right to speak. i will tell you that that is nonsense. corporations enjoyed robust speech rights before citizens united. indeed, they did not open the floodgates with citizens united. they open with a few years before that receive no press attention current at most, citizens united expanded the rights of corporations to be more specific about their independent expenditure. to put it in crude terms and by way of example, before citizens united, corporations could run an ad that said senator x kicks puppies, call him and tell them not to kick puppies. now they can run an ad that says

senator x kicks puppies. do not vote for him. that fact has been utterly ignored by the press. as you all know, when congress regulates under the first amendment, it has to have a good reason for doing so. the reason that congress has law invoked is corruption. quid pro quo corruption is when i give you money and you give me a vote. the donors are calling the tune. indeed, at times, the mere appearance of undue influence and access was an appropriate route for regulation and that approach gave congress a great deal of room to regulate.

citizens united seems to have cut back dramatically on that approach. it has returned us to the defendant -- the definition of corruption. we're back to quid pro quo corruption. while the press mourns the court holding when it overruled lawson, the one campaign finance case ever in the to the equality rationale, ingratiation and access are not corruption. the broad and nebulous view of corruption endorsed by the liberals allowed congress to regulate problem without ever mentioning the word "equality." that is what was at stake in citizens united. while the press has missed this point, the courts have not been lower courts have begun to dismantle portions of the campaign finance system on these grounds. advocates have not missed the

lessons of mukasey there. macomis -- and lessons of along either. macomish is not ignoring it. given that quid pro quo corruption is the only run for regulation, why do we need more? why arizona even needs a public finance system? publicly financed candidates, they observe, are no less susceptible to trading of four gym bags full of cash them privately funded candidates. this is why campaign finances so fine. they did have a case involving gym bags full of cash in arizona. what is the justification of public finance other than the now illicit equality rationale? the court does not need to answer that question. but how it answers that question, whether it's does it

inmacomish or when it does it more directly in the future, it is not just public finance, but finance more generally. this may not be the case that resolved the question but it is likely to give us a hint as to which the direction will eventually take us. the second case i have is also one of the blockbuster cases of the term. it is snyder vs phelps. if there is every case to pull at the justices heart strings, it was snyder. mathews letter was killed while serving in iraq. at the funeral, a man named fred phelps and the rest of this was borrow baptist church staged tickets involving a variety of despicable signs, homophobic slurs, silver in the death of american soldiers, anti-catholic attacks. was borrowed church routinely boycott the -- routinely pickets of the funerals of soldiers

because they believe that the american college of homosexually led directly to 9/11 and the casualties of the iraq war. picking funerals of private individuals have garnered was borrow -- from midwest borrow -- garnered westborough more attention than it deserves. the district court let the compensatory decision stand. justice alito's vigorous dissent urged the justices to make an assumption -- to make an exception where private individuals are subject to personal attacks during a funeral or during other occasions that he turned intense emotional sensitivity. but the chief justice resisted

the urge to carve out an exception can it reads like -- an exception. it reads like a dramatic first amendment case. the fact that all of this occurred at a private funeral did not make the speech any less public in nature in the view of the court. the picket was peaceful and in full accordance with existing time, place, and manner restrictions. it was protected by the first amendment, not withstanding the despicable purpose. despite the straightforwardness of the opinion, there are signs that this was not the easiest of cases for the majority. while maintaining a steady the neutrality, the court notices that others may well find the message offensive end of an enjoyable value even in a robust

marketplace. the court was very careful some of the analytic rabbit holes that it might have tumbled into had it written a broader opening. the court carefully classified the speech as mostly dealing with issues of public concern. that avoided the naughty questions involving some of the speech directed at snyder himself. for procedural reasons, the court had the luxury of ignoring the online diatribe public by westborough, which was not an option available to the fourth circuit. it requires us to tolerate the and tolerant, to maintain a free marketplace of ideas, even for those ideas that are surely wrong. lee bollinger, a law scholar, says that the first amendment is important as much because it signals our willingness to allow despicable speech as for the rights of the speakers themselves.

in his view, it is our capacity to tolerate the wrongheaded, even the intolerant that makes us who we are. snyder very much reads in keeping with that tradition. but snyder leaves open as much as it resolved. it reads as a simple case, but it may be deceptively so. the court's assessment of the fax is that this is predominately a matter of public concern and it failed to grapple directly with the speech directed specifically at snyder himself. those things enable the court to write a clean opinion that left the side of the difficult questions about how far the first amendment is allowed to push us where we had more obviously private speech involving more of is the private arms. >> -- more obviously private harms. >> i want to thank the judges of

this court and professor howard for inviting me to be here. i spent a very important year of my life in this court. it is good to come home to find in that it fit. with the campaign finance cases, the question i have for heather is what refers to what you call these so-called illicit equality rationale. i remember the or zero argument in davis. justice scalia denounced this idea in his inimitable way. he said what if we find out that one candidate is more eloquent than the other? should we require that he speak with pebbles in his mouth? [laughter] i do not think any of us are inclined to require candidates to speak with pebbles in their mouth. is egalitarian, is this idea of not leveling the playing field

making it less dramatically unequal? the concern is intuitive. those with a lot more money get to speak a lot more and drown out everyone else. i do not think the court will anytime soon accept this rationale. but i am interested in whether you think that is what is moving the court and what is moving a lot of campaign finance legislation, and whether you think there's something to eat normally. >> may i add a separate question related to that -- something to it normatively. >> may i add a separate question related to that? i notice to the lack of deference to congressional judgment. but she did not say why the court is hesitant to defer. his reason is that, in the context of a campaign speech, the legislators who are writing the rules are players in the game and they and stand extremely well who wins and who loses from various regimes of

campaign finance so-called reform. the essential problem is this. incumbents are in power. it is easy for incumbents to raise money for their reelection campaign in appropriately small contributions from large groups of interested people. it is difficult for an unknown challenger to be able to raise the money coming even to be able to compete. so there is a persistent suspicion that the efforts to make it more difficult to raise money for campaigns is really a disguise, not for egalitarian concerns, whether they are right or wrong, but for incumbency protection. >> heather? >> in the equality verses corruption debate, i credit --

david strauss argues that the corruption concern has to be about equality for the following reason. as long as we assume that you give the money to the candidate of properly, not jim? full of cash, what you do in a campaign science cases that they can only give a certain amount of money to help the candidate win. it is not lining his pockets. it would be appropriate if you could calibrate and find it a good thing to contribute. if that is the case, why would we possibly worry about giving money to help the candidate win? we have to say that if everyone has one vote, the do not all have the same amount of money. i think the quality rational does animate current even now, when legislators tried to pass campaign laws and they know that the quality rational is not

allowed, they really fall into the trap of talking about leveling the playing field. those are the terms of signal the real motivation behind this. all of the election is ridden with its problems. the foxes are guarding the hen house. when that happens, they are not likely to do much to help the chickens. and we are the chickens. so what should courts do when they look to the regulations passed by legislators? as long as we have the system that we do, which is a partisan system where legislators passed the law, i think the only way to look at it -- the only thing to do is to give it a hard look. no campaign finance reform ever gets passed unless it is in the interest of legislators. that is a fact. you have to hope that, vocationally, the interest of legislators align with the

interest of the voters. that is always true. legislators have no interest in serving their constituents. they want to pick their constituents. whenever you have campaign finance legislation, you have to give it a hard look to make sure that the incumbents are not serving their own interests, to make sure that one party is not using a seemingly neutral regulation to hurt the other party. these are routine problems. for that reason, i think it is a proper for congress and legislators to receive less difference than the usually do on these questions. >> i wanted to offer a few thoughts about snyder vs phelps. it is one of the most important decisions. on the merits, i think the court got it right. i felt it was instructive for me and all of us to sometimes monitor our own emotional reactions as we read supreme court opinions. in my own case, the more angry and upset i got by the facts and

what the church did, the more became persuaded that the court was right, that they are speech was constitutionally protected. i do not think this was it is primarily or very much at all about separating protesters from a father who wants to mourn the loss of his son in peace. i think the facts made clear that the church had every right to be where they were and in no way disturb the funeral. i think it was about suppressing a message altogether and i think the court was right to resist the repressive urge. i think snyder, like the steven's case that professor howard mentioned, illustrate a very interesting 8-1 split in this court where the first amendment cases and values collide with norms of committee, norms of decency, norms of respect for basic human dignity. sometimes the dignity of non humans, animals, as well.

i think there is an overlapping consensus on the robber court in these kinds of first amendment cases. i do not think it makes sense any more to talk generally about what it means to be a liberal or conservative in these kinds of first amendment cases. there's also one consistent the center. dissenter.ent with the cente it eliminates what was going on in this case, particularly in the dynamic between the roberts and the majority opinion and the dissent.scen he has identified attention in these kinds of first amendment cases between the first amendment as the guardian of our democracy and the common-law tort as the guardian of our community. there are times when these two values clash irreconcilably.

in also illuminates to the extent that these two values rely on one another. respect for the first amendment and certain norms of communities. it does not undermine or restrict them. in order for the first amendment to robustly protect speech on matters of public concern, we require a community that values first amendment values and is prepared to defend them, even when a repressive verge is difficult to control. i think the chief justice understands this in the opinion he wrote. for one thing, he enacts it. it is a very disciplined opinion. while acknowledging the suffering that met you snyder's father in door, it is nonetheless very disciplined and neutral about of the speech at

issue. it is worth focusing on the last paragraph of the opinion. the chief justice wrote the very falling -- the following very movingly -- speeches powerful, move people to action, move them to tears of both joy and sorrow, and, as it did your coming in click great pain. as a nation, we have chosen to protect even hurtful speech on public issues to ensure we do not stifle public debate. i read this as a reminder to all of us that the first amendment values at stake in this case rely upon the community who is prepared to indicate them. >> i have one response between a -- about this division between public values. this is where i felt that the chief did not answer justice alito. justice alito said that we do not have to choose between them.

we can separate them. we can talk about the speech that was directed at snyder alone. why not separate them and hold these guys liable at least for the purely private speech. i think there is an answer to that question, but roberts did not provide it. he did not say why it was necessary to figure out generally what the speech was about. i think it would have been a strong opinion had provided an answer to what i thought was a sensible lawyers point. >> i am not a first amendment specialist. before that reason, my speech protective reflexes. i am unhappy with snyder for a couple reasons. nothing either of them has to do with emotionalism or repressive verge. one reason i am unhappy is the issue of the distribution of the

cost of free speech. when people like lee bollinger say that this is the price we pay for the system of free speech, it is not a price that we pay, but the price that albert snyder pays or that that family pays. it was concentrated on one or a few people in cases like this. that distributive issue is a legitimate non-emotional ground for worrying about cases like cider, i believe. the second point -- cases like snyder, i believe. >> the second point is that they slightly miscast the objection. sliders position, rightly understood, is that you can speak on matters of public concern, but you d you have to hijack my son's funeral to do so? the church is saying that we will exploit you for publicity.

and the attempt to stop that is not an attempt to stop them from speaking on matters of public concern. it is an attempt to say that you may speak on matters of public concern, but you have to do so in a place or in a time or in a way that does not hijack someone else's private concerns. i do not think that is a repressive surge or emotional trauma. i think it is a legitimate argument that should have been more squarely drafted. >> i want to, wanted to comment on this not because i disagree with the decision, but because it is deeply controversial character needs to be recognized. we engage in this fog of free speech celebration and sometimes forget, among other things, how different the united states is from other parts of the world. any other -- in any other

western country, this case would have lead to prosecution. it would have been described as a hate speech. a dutch parliamentarian was prosecuted he was acquitted, but he was prosecuted for speech criticizing islam that was far less inflammatory than that god hates fags speech that westborough baptist church in did in this country. in canada come up -- in canada, britain, and other european countries, they would have been facing criminal liabilities. i celebrate the fact that we have not gone down that path, but i think we need to recognize that this is really an american distinctive. but also wonder how far these principles of snyder will be

oppressed. i think that the majority opinion in snyder depended upon does not existat i in fact. there are issues of public concern on one hand and targeted attacks on individuals on the other hand and to define this as falling in the first. with that cataloging all the examples, the principal ones that we see have to do with harassment on the basis of sex, race, sexual orientation, and so forth. speech of this sort, up offensive racist, misogynist, homophobic speech, has a deeply political character. it is about issues of public concern no less than the speech

i hear is. but is forbidden under public accommodation law in a number of context. just in the last few weeks, the federal government has come down on your university under the title 9 -- down on yale university under the title action for failing to take aggressive action against some sophomoric fraternity pranks yale took place at you i university that was offensive to female students. sutter nurses felt goes to great lengths -- slighter vs phelps -- snyder vs phelps goes at great lengths to use offensiveness

under the legal standard of the first amendment. that is the standard being applied under harassment law. it is the standard applied at yale. it is enforced with a great deal of ruthlessness on american campuses today. how will we resolve this attention? are the ringing principles of snyder vs phelps going to crowd out the increasing efforts to protect people against offensive speech where the offensiveness is based upon the favored categories of race, sex, religion, sexual orientation, and so forth? it is interesting that none of the opinions in this case recognizes that this is -- there is this huge domain of speech restriction based upon offensiveness that exists in

this country. which principal will prevail? >> i have not read the amicus briefs. did they address this point? >> i have not read them. >> that is a profoundly important point. you have set up very nicely for me to pass the baton to you. >> just one general remark looking at not just this term, but the last several terms, is that free speech is alive and well in the supreme court. i would say that this is the most consistently and strongly free speech protective court in american history. we see the court protecting our principles of freedom of speech, even in the face of very

powerful concerns on the other side. last term, animal cruelty, this term this horrible speech in snyder vs phelps, and as i go into some other cases as well. i will begin with the one case in this term in which the court did not protect something that is arguably freedom of speech. that is nevada commission on ethics versus kerrigan. that is the exception not typical of the term. this had to do with accusal rules for the nevada legislature. under these refusals, they legislate or is not allowed to vote. he is not even allowed to abdicate in favor or oppose legislation where he has a personal interest in the matter

, in the particular facts. this was a challenge, so the facts did not really matter, but the particular facts are ones where this legislators chief campaign manager and his shoe supporter becomes a lobbyist and now is representing a party who has an interest in this litigation. the court holds in an opinion by justice scalia, joined by all but kennedy and a leto -- alito -- it holds the statute is legal under the present amendment. it is that voting and advocacy is first amendment protected and thus the nevada statute violates freedom of speech. the court said no. essentially it said no because

voting is not speech. and the courts as the key point here -- they legislate toward's about is the commitment of his proportion share of the legislature's power to the passage or defeat of a particular proposal. so it is really not speech. but this is, when the legislature votes, and exercise of power. it is governmental authority delegated to that person by his constituents. there is a certain amount of sense to that. that may be right. but kennedy and toledo -- and alito have concurrences that are interesting and thought- provoking. it is how close the idea of voting is to expression. justice alito said that if we

held a straw poll, nobody would the but ordinary people casting a vote in a straw poll is the way the express their opinion on a matter. he says so also with legislators. i am very interested in the application of constitutional history to constitutional cases. i cannot help but note that the speech and debate clause of the united states constitution clearly applies to voting. the speech or debate clause -- did our farmers miss something that says now that voting is not speak at all? it is also interesting that the freedom of speech, the phrase "the freedom of speech," in the pre-independence british constitution meant -- the only thing it meant was the right of members of parliament to vote and advocate for particular

measures in parliament. that is what freedom of speech was all about. it is interesting that the very thing that was the core of the freedom of speech under british constitutionalism is not freedom of speech at all. and yet there is also a longstanding tradition of accusal rules. -- recusal rules. it seems almost inconceivable that they would be unconstitutional. alito and kennedy offered different ways of looking at. alito said it is speech but these are proper restrictions on speech. we would then enter into a conversation about how narrowly tailored the rules are, and so forth, and not class them as not speech. justice kennedy concurs, but he says this presents an important

applied challenge rather than a facial challenge. he calls attention to the fact that i do think is quite troubling, the the line drawing about what matters and a legislator has an interest in are going to be very difficult. i was struck in our discussion of citizens united with justice kennedy,'s statement in the earlier case that ingratiation and access are not corruption. ingratiation seems to be exactly the interest for which this nevada legislature was recused, because it is his campaign manager who has a claim on his affections and loyalty. that is what this is about. i think kennedy is being consistent in being worried about this in both context.

>> will you take the question? heather? >> what is interesting is the way it fits into the long- running court argument about this question, where both have expressed dimensions. the kennedy/scalia divide it goes very far back with protest votes. kennedy, the first amendment romantic, sees expressive dimensions to it. it gets the court tangled up. here i think scully it is consistent. but i do not think the rest of the court has figured it out, these controversies over disclosing people who give money to initiatives. there was a recent case involving sun in the referendum, whether that was a public act that could be disclosed or something more like a boat that had to be kept quiet. on the way to the court right now is the case involving prop.

8. people who give money on the same-sex marriage question in california were confronted by gay-rights advocates for what they did. some of their stores have been boycotted. people have been fired on these grounds. the question is what are you doing when you are giving money to prop 8. are you a legislature because it is your vote and is a powerful moment, it is an exercise of power? or is it something more private and expressive? the court has not come down with the position. the argument keeps popping up, but they have never pin down what they think of it. >> i think a big worry about the nevada at the commission's case is that the majority is inadvertently taking sides on a classic issue of political theory. they do not even seem to realize they are doing so. let me read you two crucial

sentences. the legislature that casts his vote is a trustee for his constituents, not the prerogative of personal power. voting by a legislator is different than voting from a citizen. a voter's franchise is a personal right. you see why a majority has to say that. if voters are trustees for someone else, they would be subject to the same logic in their vote would not count as protected speech either. but that is a classic view in political theory, articulated by john stuart mill most famously. the vote for citizens is not like a piece of private property. it is a function you exercise as a trustee for the rest of the citizen body. justice scalia assumes a way that line of argument in a way that i think would require a lot more work to sustain. >> it is a question for mike. as you describe well, the court

says a legislative vote is not speech. the court goes on to say that the legislator at issue does not have the right to vote and so it is permissive to ban the legislator from participating in a legislative session as a valid time, place, and manner restriction. speech during a session is speech. it is not a vote. my question is maybe that is right. i do not know who else has a right to speak during the legislative session if they are not point to be voting. but it did in the court frivolously and seamlessly move from one conclusion to the next. i wonder if it is more complicated. >> i agree. it is one short paragraph in this opinion that addresses the advocacy side of the recusal wall. i was not satisfied with the logic of this. there are people who have a right to advocate on the floor

without voting. for example, representatives of territories do not vote in congress, but they do have a right to speak. there also are numerous other arrangements in city councils, for example, where there is often a time when citizens have the right to speak to the council, and so forth. i am not really sure where the court comes off -- exactly what the real logic is extending the recusal provision to advocacy. i think it is troubling. >> would you like to move on to other first amendment cases? >> the key to victory for the first amendment side in the -- the key in the nevada case is the court deciding the citizen'' speech. once you get the court to see

this action as being speech, speech protection things kick in. this is even in cases where it is a matter of legitimate dispute whether what was at stake is speech. here in sorrel versus imf health, there is an interesting case. this case involves information that pharmacies get through government-mandated procedures when doctors send in procedures. the information is kept so the pharmacies know what kind of drugs individual doctors are prescribing. this information can be used for health specialists to be studying issues of an old

prescription, and for help economists to consider such things as the use of generic drugs. it can be used for a variety of purposes. but state law in several states forbid a pharmacist from selling disinformation to drug companies. the reason drug companies want this information is that they send their representatives to do what is called the killing, which is meeting with doctors -- what is called detailing, which is meeting with doctors to suggest they subscribe certain drugs. if a drug company knows what drugs a doctor is declined -- is inclined to describe, that enables them to target this marketing more effectively. i thing it is exactly what goes on on the internet when the internet tracks your purchases

and mysteriously at start appearing on web pages that are targeted directly to you. some people on the internet think this is a good thing. i like it. it means advertising is something that is going to be of use to me. but some people do not like it. they think it is either an interference with their privacy or for some other reason objectionable. this is effectively a non- internet version of the same thing. two courts of appeals split on this. one court of appeal said this use of the doctor-specific information is no more freedom of speech -- this is just regulating a commodity. this information being sold is a

commodity, the court said, just like turkey. regulating it is a matter of regulating a business. the supreme court took the opposite view. it took the view that it is speech because this is information and the purveying of information, even for sale, is a form of speech. it does not matter that there is a profit motive. the lot of information for sale is out of the profit motive. the new york times, for example, gives us information every day not out of the goodness of its heart but because they are in the profit-making business of selling newspapers. so also authors and bookstores. a great deal of speech is generated in the for-profit making purposes.

the court then notes there is a discrimination in the law about which speakers and which subjects this information can be used for. it can be used by researchers for educational and scientific purposes and public health purposes and so forth. it cannot be used by drug companies from marketing. the court said that this kind of speaker discrimination and subject matter discrimination with respect to speech is subject to tighten scrutiny. in this case, because it is commercial, the court says they do not have to decide whether it is strict scrutiny or commercial speech intermediate scrutiny. either way, the government has to establish that it has a substantial interest in the regulation and that is being served in an appropriately

narrowly tailored way. i think this is a rather progressive free speech case. it again shows how important it is to get within that free speech box. it is interesting to compare this case with the nevada ethics case. the nevada ethics case, and a legislator voting and advocating for legislation, not speech. hear, selling data mining about a government-regulated -- information generated as a result of government regulations, that is speech. that accounts for the difference in the questions. one wonders whether there is not some tension in the propensity of the court to see what is and is not speech. to throw in one further example from last term, and the court

found a law school religious group's insistence that those who conduct their bible studies actually believe in the bible, that is believed in their own religious views -- that was described as the majority -- by the majority as conduct rather than speech and therefore could be suppressed on the basis of a regulation that is merely reasonable and not viewpoint discriminatory. defining the sort of speech, the speech-related tax, a speech or conduct is outcome determinative, and not necessarily intuitive. >> when you think about this it post-1937, there is a general assumption that courts are not meant to second-guess legislators on social and economic issues.

are the commercial speech cases starting back in the 70's and now including sorrell -- are they narrowing that position and displacing that generalization with the notion that if you can characterize it as speech it becomes something appropriate for judicial review? is this another addition to that line of cases? >> i think it is. just as briar -- just as brier - justice bryer has an interesting descent. he said it is business and should be treated as ordinary commercial regulation. there is an earlier case involving advertising of food products in which the court did just treat the matter as one of economic regulation.

to me, economic or not economic is not the line the court is using. i think it has to do with what rights are protected by the constitution and which are not. much of the problem with the lord mayor area -- of the law firm -- of the loughner area is that there is no general economic freedom protected. there is no general what freedom to engage in contracts that you want to. instead, what i think the court has come to say with the exception of some of the very controversial substitute due process cases is we are going to protect what is in the constitution and are not going to protect the stuff that is not in the constitution.

there is a line in sorrel that supports this. i think it is a response, and implicit response to justice breyer. and i think i can quote it. he says the constitution does not embody herbert spencer's social ethics. a famous line from the justice holmes. and he says, "but it does have a first amendment. i think it can lead the's point is that the first amendment protect speech. this is speech. >> there was another case on the docket this term, a first amendment case. is that another example of defining in and finding out? you had the court concerned they

might open the floodgate to retaliations. it is being seen as first amendment issues. that seemed a little like an example of the nevada case, an exception to the general tack with the first amendment. they seem not to want to bring that conduct within the scope of the first amendment. >> it is conceptually one of the most interesting cases of the term. this was brought under the petition clause. there are precious few supreme court cases ever under the petition cause. this is a case in which by all rights, everyone agrees the plaintiff would have lost with the free speech clause. the question is whether the petition cause provides a separate and independent protection. this is the public employee. he is the chief of police. he files various labor grievances and also some more

political grievances against the city, and the city council fires him as a result. under longstanding, although i think rather odd and unpersuasive, but nonetheless longstanding, supreme court doctrine, public employees cannot be fired in retaliation for their speech. but it is only protected if it is on a matter of public concern. you might also want to think about snyder against phelps. if his liver -- labor grievances are his private concern, it is not protected under the free- speech clause at all. the chief of police does not go under the free-speech clause. instead, he sues under the

petition clause. the significant point about the petition cause is we know historically that petitions are frequently, maybe even quintessentially, on matters of private as well as public concern. you can submit petitions on matters of public concern, but the vast majority of petitions that would have been known to the farmers of the first amendment or matters of private concern. if you had a problem with the government, you send in a petition asking for it to be dealt with. his point is that the first amendment has different protections. the free-speech clause is not the only thing there. there is the speech clause. there is protection. there is assembly. there is free exercise of the establishment related to religion. he says if you look at the purposes of the speech clause it may be logical to give greater

protection for matters of public concern, but if you are looking at the petition cause it does not have within it and the preference or greater importance for public rather than private. if anything, it has the other way. the majority opinion written by justice kennedy essentially reduces the petition close to the speech clause, applies the same distinction to the petition cause, and says he loses. justice scalia wrote a fantastic descent -- dissent, my candidate for best of the term. he takes the majority to task for failure to recognize that these are for different causes to the first amendment. each stands on its own. i said it is a idss -- dissent. it is actually a concurrence.

he says the key distinction and the reason the chief of police should lose is that when you are petitioning the government in its sovereign capacity because applies. but when you are petitioning your employer in the capacity of being your employer, that is not a petition covered by the first amendment. so it is a distinction between public concern and private concern, but whether the employer is the recipient of the petition acting in a government capacity or employment capacity. the strikes and as a much more consistent with the history and purpose of these clauses that i do not understand why did not attract more -- justice thomas agreed with that. i do not know why it did not attract more votes. what is this important? it is part of a trend over the past several years of collapse

and all the various parts of the first amendment into freedom of speech. i think this was a serious mistake. last year in the christian legal society case, this religious group or referred to brought freedom of association, the modern way we used to speak of what the framers spoke of as assembly. they have a separate claim. we have a right to constitute our group with our leaders being people who agree with our beliefs. that is an essential part of freedom of association. and we can not be penalized by that -- for that by being excluded from otherwise generally available public benefits like being able to meet in classrooms at a public law school. the supreme court last year said, essentially, that it would be anomalous to give the group greater rights under the freedom

of association than they would have an entitled to under freedom of speech. that is the entirety of the logic, that it would be anomalous. i think on the contrary it is not at all anomalous to say that the different provisions of the freedom of the first amendment are protecting different aspects of communication, and in slightly different ways. what is anomalous is for the court to bomb them altogether -- glom them all together and say we have a free-speech clause and no other cause provides additional protections. we would be able to say the same thing of press, which has been reduced to freedom of speech. association reduced to freedom of speech. the addition largely reduced to freedom of speech. this seems to me to be an unwarranted development. >> thank you.

you see mike is right. it was a big first amendment term. time is running. we want to be sure to give ample time to federalism and the important cases this term. >> by my count, there were five pre-emption cases this past term. i am not going to try to subject to to my exegesis on each of them. instead, i will try to treat them illicitly and identify three questions that i think are worth puzzling over about these pre-emption cases. they are not perhaps the most exciting of the term, but i think several are important. the first question is why so many pre-emption cases not just this term but term after term in general. second, it is the robert court fairly described as the pro- preemption court backs if that characterization is accurate?

-- a fairly described as a pro pre-emption court? if it is characterized that way, is there any reason to be concerned about this from a federalism perspective? >> first, why are there so many pre-emption cases? i am going to briefly summarize the subject matter of these cases. i think that will go a long way towards eliminating why we have so many of them. the chamber of commerce against ". the issue was whether an arizona law imposing licensing sanctions on employers is pre- empted by federal immigration law. at&t mobility against conception. the question is whether the federal arbitration act provide the to the rule of california contract law, the self discovery law, which deemed class action waivers unenforceable when certain criteria are met.