Earlier today, professor and leading First Amendment scholar Steven Heyman delivered Chicago-Kent’s Constitution Day lecture on “Conservative Libertarianism and the Transformation of First Amendment Jurisprudence.” Professor Christopher Schmidt, director of Chicago-Kent’s Institute on the Supreme Court of the United States, offered a brief response. The event was presented by the Chicago-Kent student chapter of the American Constitution Society.
View the video of the lecture below:
A more in-depth version of Prof. Heyman’s lecture will be published in a forthcoming West Virginia Law Review article titled “The Conservative-Libertarian Turn in First Amendment Jurisprudence.” See an abstract of the article below, and download from SSRN here.
Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak can also be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious speech within public schools and universities, and held that the right to free association takes precedence over state civil rights laws that bar discrimination based on sexual orientation.
This article, which was presented as the third annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, explores this trend in First Amendment jurisprudence. After providing an overview of the conservative-libertarian approach to the Constitution, the article describes how this approach has been applied in cases on free speech and association. The article then criticizes this First Amendment approach on several grounds. First, it draws too close a connection between free speech and property rights. In this way, it represents a partial revival of Lochner¬-era jurisprudence – a development that Baker strongly criticized throughout his career. Second, the conservative-libertarian view affords too much protection to speech that injures, abuses, or degrades other people. Third, the judges who hold this view tend to be social conservatives as well as libertarians, and deep problems arise in situations where these two aspects of conservative thought conflict with one another. Fourth, the conservative-libertarian approach fails to satisfy its own demand for ideological neutrality. And finally, by granting the government broad authority to restrict speech within public institutions, that approach tends to deny protection to those individuals who are most vulnerable to state control, including prisoners, public employees, and those who serve in the military.
The root problem is that the conservative-libertarian approach is based on an excessively narrow and one-sided conception of the self – a view that stresses the ways in which we are separate and independent individuals, but that fails to fully recognize that we are also social beings who find an important part of our identity and value in social relationships and participation in community. We need to develop an approach to the First Amendment that is based on a broader and richer conception of the self, the society, and the nature of constitutional liberty. The article concludes by outlining such an approach, which it calls a liberal humanist theory of the First Amendment. On this view, the law should be allowed to impose reasonable restrictions on hate speech and pornography, as well as on the ability of wealthy individuals and corporations to influence elections. Freedom of association should not necessarily permit groups to exclude individuals on invidious grounds such as sexual orientation. The Justices have been right, however, to hold that public educational institutions generally must accord equal treatment to religious speakers.
Highlights from today’s Supreme Court IP Review will be coming soon. In the meantime, visit law professor and conference participant Rebecca Tushnet’s blog for a detailed review of today’s sessions. Find individual session posts below:
Session 1: Octane Fitness v. Icon Health & Fitness Inc. and Highmark Inc. v. Allcare Health Management System
Session 2: Limelight Networks v. Akamai Technologies and Medtronic v. Mirowski Family Ventures, LLC
Session 3: Petrella v. MGM
Session 4: ABC, Inc., v. Aereo, Inc.
Keynote Lecture by David Kappos: “Stalemate or Statesmen? What Is Needed to Move Forward Constructively with the Balancing of America’s IP System”
Session 5: Alice Corp. v. CLS Bank and Nautilus v. Biosig Instruments
Session 6: Lexmark Int’l v. Static Control Components and POM Wonderful v. Coca-Cola
Concluding sessions: Supreme Court Analytics on the Past Term and Preview of Upcoming Term
Chicago-Kent will hold two events next week in celebration of Constitution Day (Wednesday, September 17), the date delegates to the Constitutional Convention met in Philadelphia in 1787 to sign the completed United States Constitution. Read the full press release here, and see event details below:
Monday, September 15, 4:00 PM
“The Press, the Supreme Court, and the Constitution” is the subject of a panel discussion to commemorate Constitution Day. Panelists include Professor Sonja West of the University of Georgia School of Law, Professor RonNell Andersen Jones of Brigham Young University Law School, and Dahlia Lithwick of Slate. Chicago-Kent professor and Illinois Solicitor General Carolyn Shapiro will moderate.
The event is free and open to the public, but reservations are requested. The 2014 Constitution Day program is co-sponsored by the Jack Miller Center (JMC) and IIT Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS).
Location: IIT Downtown Campus – Chicago-Kent College of Law, Judge Abraham Lincoln Marovitz Courtroom
Contact: Professor Christopher Schmidt
*Photo clockwise from top left: Professor RonNell Andersen Jones of Brigham Young University Law School, Dahlia Lithwick of Slate magazine, and Professor Sonja West of the University of Georgia School of Law will speak at IIT Chicago-Kent’s 2014 Constitution Day celebration. IIT Chicago-Kent Professor Carolyn Shapiro (bottom left), who is on leave to serve as Illinois solicitor general, will moderate the discussion.
Wednesday, September 17, 3:00 PM
IIT ChicagoKent professor and leading First Amendment scholar Steven J. Heyman will explore the impact of conservative libertarian ideology on the First Amendment. Professor Heyman’s lecture will be followed by a brief response by Professor Christopher Schmidt, director of IIT Chicago-Kent’s Institute on the Supreme Court of the United States, and an open audience discussion. Food and refreshments will be provided.
Location: IIT Downtown Campus – Chicago-Kent College of Law, Room 520
Contact: Peter Cheun, American Constitution Society
[Reposted from IIT Chicago-Kent News]
IIT Chicago-Kent College of Law’s Program in Intellectual Property Law will launch its 2014–15 BookIT intellectual property book talk series on September 8 with a discussion of two groundbreaking books on innovation and intellectual property in Africa. Programs in the series, which are free and open to the public, will be held at the law school, 565 West Adams Street (between Clinton and Jefferson streets) in Chicago.
University of Ottawa Professor Jeremy de Beer will discuss Innovation & Intellectual Property: Collaborative Dynamics in Africa and Knowledge & Innovation in Africa: Scenarios for the Future, both published in 2013 by the Open African Innovation Research and Training Project (Open A.I.R.). Professor de Beer’s talk will begin at noon in room 370.
“Our BookIT talks are designed to present new and thought-provoking work by authors and researchers in the area of intellectual property, law and technology, or the Internet,” said IIT Chicago-Kent Professor Edward Lee, director of the Program in Intellectual Property Law. “We are pleased to have Professor de Beer as the inaugural speaker for our series.”
In the most recent U.S. News & World Report law school rankings (March 2014), Chicago-Kent’s Program in Intellectual Property Law was ranked 10th in the country-the highest-ranked intellectual property program in the Midwest.
For more information, contact Gwendolyn Osborne, Director of Public Affairs, (312) 906-5251.
[Reposted from IIT Chicago-Kent News]
David J. Kappos, former undersecretary of commerce and former director of the United States Patent and Trademark Office (USPTO), will deliver the keynote address at IIT Chicago-Kent College of Law’s fifth annual U.S. Supreme Court Intellectual Property Review (SCIPR) on September 12. Kappos will address the topic “Stalemate or Statesmen? What Is Needed to Move Forward Constructively with the Balancing of America’s IP System.” The one-day conference will be held from 8 a.m. to 6:30 p.m. at the law school, 565 West Adams Street (between Clinton and Jefferson streets) in Chicago.
IIT Chicago-Kent’s U.S. Supreme Court IP Review is the only conference in the country focused exclusively on intellectual property cases before the Supreme Court. This past term, the court heard a record 10 intellectual property–related cases, the most in its history, including important cases concerning software patents and TV broadcasts over the Internet.
The annual program draws leading members of the U.S. Supreme Court bar, intellectual property practice, academia, and the judiciary. Presenters include many of the nation’s top intellectual property scholars and Supreme Court litigators. Participants in this year’s conference will review intellectual property cases decided in the 2013–14 U.S. Supreme Court term and examine cases on the docket for the next session.
David J. Kappos, currently a partner at Cravath Swaine and Moore LLP, is widely recognized as one of the world’s foremost leaders in the field of intellectual property, including intellectual property management and strategy, commercialization and enforcement of innovation-based assets, and the development of global intellectual property norms, laws and practices.
Prior to joining Cravath, Kappos served from 2009 to 2013 as undersecretary of commerce and director of the United States Patent and Trademark Office (USPTO). As director of the USPTO, Kappos led the agency in re-engineering its management and operational systems as well as its engagement with the global innovation community. He was also instrumental in achieving passage and implementation of the Leahy-Smith America Invents Act, signed into law by President Obama in September 2011.
Prior to leading the USPTO, Kappos held several executive posts in the legal department of IBM, the world’s largest patent holder. From 2003 to 2009, he served as the company’s vice president and assistant general counsel for intellectual property. During more than 25 years at IBM, Kappos also served as litigation counsel and Asia Pacific IP counsel, based in Tokyo, where he led all aspects of intellectual property protection, including licensing, transactions support, and mergers and acquisitions activity, for the Asia/Pacific region.
Kappos graduated summa cum laude with an undergraduate degree in electrical and computer engineering from the University of California, Davis. He earned his law degree from the University of California, Berkeley, in 1990.
General registration for the conference is $35; $15 for non–IIT Chicago-Kent academics; and free to all law students and to IIT Chicago-Kent faculty. For more information or to register, please contact Patricia O’Neal at (312) 906-5128 or firstname.lastname@example.org or visit the website: www.kentlaw.iit.edu/scipr.
In the most recent U.S. News & World Report law school rankings (March 2014), IIT Chicago-Kent’s Program in Intellectual Property Law was ranked 10th in the country-the highest-ranked intellectual property program in the Midwest.
For more information, contact Gwendolyn Osborne, Director of Public Affairs, (312) 906-5251.
Chicago-Kent’s annual Supreme Court IP Review is a leading conference designed to provide intellectual property practitioners, jurists, academics, and law students with a comprehensive review of the U.S. Supreme Court’s IP cases. The conference focuses on the IP cases from the U.S. Supreme Court’s previous Term, the cases on the docket for the upcoming Term, and a handful of IP cert. petitions to watch.
The Honorable Diane Wood of the U.S. Court of Appeals for the Seventh Circuit delivered the keynote address at SCIPR 2013. Her speech sparked an ongoing national debate over ending the Federal Circuit’s exclusive jurisdiction in patent cases, most recently in a Wall Street Journal article titled “Critics Fault Court’s Grip on Appeals for Patents.” Here is an excerpt:
Calls to loosen the court’s hold on patent law are growing amid complaints that the court, through its rulings, have made certain areas of patent law hard for lawyers and lower courts to follow. Allowing other appellate courts around the country to weigh in on patent issues might help sharpen the law, say critics.
“The judges on the Federal Circuit are as capable as any in the country, but we’d be better off having a diversity of [judicial] viewpoints on patent law the way we do with nearly every other legal subject,” said Diane Wood, the chief judge of the Seventh U.S. Circuit Court of Appeals in Chicago.
In a speech last fall, Chief Judge Wood publicly advocated abolishing the Federal Circuit’s “exclusive jurisdiction” over most patent appeals, in favor of letting the other federal appeals courts hear patent cases as well.
Previously, Judge Wood’s address received attention in a Washington Post article titled “The Dixie Chicks and Robin Thicke explain how to fix the patent system.”
On May 2, 2014, CodeX – The Stanford Center for Legal Informatics hosted the second annual CodeX FutureLaw Conference, an event which focused on how technology is changing the landscape of the legal profession. The conference brought together “leading thinkers, entrepreneurs, investors and technologists that are experimenting and actively working to re-architect the future of the law” and addressed a variety of topics, including “technology’s impact on legal data ecosystems, … the health of virtual legal marketplaces, and emerging legal technologies within the realm of public interest law.”
Along with Stephanie Kimbro (Center for Law Practice Technology and Curo Legal) and Phil Malone (Stanford), Chicago-Kent’s own Ronald Staudt took part in a panel discussion entitled “Legal Technology in the Public Interest.” The conference website outlined the panel with this:
Lawyers and companies alike tend to focus on the commercial aspects of legal technology. However, legal technology also holds the potential to improve access to justice and reinvent some of the classic problems that have dogged public interest legal services. This panel examines the latest, and raises case studies that explore the use of these technologies to produce broader societal good.
Prof. Staudt talked about his work with the Center for Access to Justice & Technology (CAJT)—a law school center using Internet resources to improve access to justice with special emphasis on building Web tools to support legal services advocates, pro bono volunteers and pro se litigants.
A video of this panel is now available here.
Chicago-Kent’s Documentary Film Series on Race shows important films throughout the semester in an effort to create meaningful discussions about race.
Join faculty, students, and alumni on Tuesday, April 22, at 12:00 pm for the final event in this semester’s series—a screening of “Raising Our Voices,” an award-winning documentary that seeks to raise awareness about the increasing hate crimes and bias incidents affecting South Asian communities, especially in the late 1990s. See a short summary from the documentary’s website below:
The documentary features South Asian survivors of hate crimes and their families in Queens, New Jersey, Pittsburgh and Los Angeles, as well as organizers, lawyers and community advocates who mobilized the South Asian community and demanded justice. When the film was completed two weeks before September 11th, 2001, little did we know how the landscape of the South Asian community in the United States would change. With the alarming increase of hate crimes, bias incidents, and profiling that South Asians, especially those who are Sikh and Muslim, endured in the days and months after 9/11, SAALT re-envisioned the documentary and shot additional footage.
Tuesday, April 22, at 12:00 pm
IIT Chicago-Kent College of Law, Governor Richard B. Ogilvie Auditorium
Contact Grace Akinlemibola for more information
On Friday, April 4th, Professor David Schwartz participated in a debate on “patent trolls” as part of the fourth annual Patent Conference (PatCon4), the largest conference for patent scholars in the world. John F. Duffy of the University of Virginia School of Law joined Schwartz in debating Mark Lemley of the Stanford Law School and Michael Meurer of the Boston University School of Law on the issue. Over at the patent blog Comparative Patent Remedies, law professor Thomas Cotter live-blogged the proceeding, which he introduces with the following:
As I mentioned yesterday, one of the events at the PatCon 4 conference is a debate on the questions of whether hostility to patent trolls is “well justified theoretically or empirically” and whether said hostility “will likely result in bad law.” Arguing that the hostility is not well justified are Professors John Duffy and David Schwartz. Arguing that it is are Professors Mark Lemley and Michael Meurer.
Click here to read Professor Cotter’s post, and be sure to check out some of Professor Schwartz’s scholarship on patent trolls, including the following articles: Unpacking Patent Assertion Entities (PAEs) and Analyzing the Role of Non-Practicing Entities in the Patent System.