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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:12:12 - 00:00:33:45
Hello and welcome to the Experto Crede podcast where your host Marine and Kylie Evans, online editors of the Minnesota Law Review, volume 107. Today with us, we have professor Al-Haj, and we're going to be discussing her article, how the Liberal First Amendment under Protects Democracy questions. Thank you so much for being with us today. Thank you so much for having me.
00:00:34:00 - 00:01:03:43
Before we start, if you wouldn't mind introducing yourself for all of our listeners and telling us a little bit about yourself. So my name is Tabitha. I am a professor of law at Drexel University. Thomas, our client school of law, and I write about the law of democracy, and particularly including both election law and campaign finance and public protests and and the rights of Assembly more broadly.
00:01:03:48 - 00:01:55:19
Unknown
And I teach constitutional law and administrative law and public law. Before we get into the details of your piece, how did your background as an academic and law student catalyze you into writing this specific piece? So this particular piece is sort of is like the culmination of the last decade of my work. But really, what brought it home for me is that probably a few years into my career, the Yale Law School started to have an annual First Amendment conference, and when I went to that for the first time, I realized most people who write about the First Amendment right about all sorts of commercial speech, compelled speech issues and basically only write about the
00:01:55:19 - 00:02:20:50
Unknown
freedom of speech. So people would sort of be surprised that I was like, they're writing about the right of assembly, or about campaign finance or about politics. And I was sort of like, I remember the first conference, the whole focus was on like whether data was speech. And, you know, when you're a young academic, you don't like, want to push all of the buttons.
00:02:20:50 - 00:02:56:00
Unknown
But this is kind of crazy that the core of the First Amendment right now is things that I see as totally peripheral, not not just original, but functional reasons why I think we have the freedom of of like all the freedoms that are protected in the First Amendment. And so then it was really the 2020 made me realize, like, this was the moment to write this piece because finally, you know, the entire country was seeing how the right to protest was important.
00:02:56:00 - 00:03:30:21
Unknown
And then we followed up with, like a very critical election occurring during a pandemic where voters were trying to have access. And so what I think had been obvious to me for a while, or at least I don't know if I should say obvious, but what had been like a concern of mine, which is that we had an academic field and sort of basically the court's focus in the First Amendment had inverted the priorities of the First Amendment.
00:03:30:21 - 00:03:51:45
Unknown
I thought that this would be a moment where that argument might get a more receptive airing than it might have had. Certainly, when I started, when I started, people said to me, why would you write about the right of protest? So pass. We don't need the right of assembly. People are just going to have the internet. And now I think we all know that, like you need both.
00:03:52:00 - 00:04:21:43
Unknown
So in fact, one might have encouraged more important forms of protest and assembly. And I think for us being in Minnesota, just reading that part of your piece was just really compelling and interesting and really kind of personal as well. Yeah. You began the article, by the way, that the Supreme Court has mischaracterized various political rights. And that section, you discuss the court's decision to place the right to vote and the purview of the Equal Protection Clause as opposed to the First Amendment.
00:04:21:48 - 00:04:42:21
Unknown
You also mentioned that the right to peaceably assemble was only protected up to the point when the Assembly violates the law. Many of these decisions seem to come about during and directly after the civil rights era. Do you think that the social context of that era has anything to do with why the court chose not to enshrine those rights in the First Amendment?
00:04:42:26 - 00:05:22:16
Unknown
Absolutely. But I think maybe for different reasons. So I think that in the context of voting, you know, the mantra had often been like, the federal Constitution doesn't include a right to vote, and certainly a minor versus Harper set sort of phrases it that way. And I think that the court justices sometimes like the path of least resistance, if they're going to have to think hard about an issue.
00:05:22:21 - 00:06:01:31
Unknown
I know we don't normally talk about them that way, but, you know, like their human they like. And the equal protection issues were so prominent at the time when so. And that's one of the arguments I make. It was like such an easy pivot, because the relationship of these voting rights violations to sort of the Jim Crow South and the racial underpinnings of many of those cases made it just seem like a very simple move to go from to think about these burdens as burdens under the Equal Protection Clause.
00:06:01:43 - 00:06:26:38
Unknown
And, and I think that that also were in the period of the Warren Court where, you know, although I try to parse the three different bases for judicial review in Caroline products. Footnote four, and the court sort of saw them all as kind of together in some way, or at least the political process and the discrete insular minority.
00:06:26:38 - 00:07:05:14
Unknown
I think it's only over time, as we've had more experience trying to undo sort of the history of racial oppression, where like the easy case, the case where there's formal de jure segregation and people are sort of racist in a like vitriolic way, like they like the way that the South was when the KKK and the political sort of, you know, basically during that period, like you, you had to almost be a member of the KKK to have political office.
00:07:05:14 - 00:07:35:38
Unknown
So like at that moment, it like we now have, have had to wrestle more deeply with what does it mean to provide equal protection. And so then it becomes, I think, more important to separate out those strands in Caroline products. But for in a way that I think in the, in the sort of 50s and 60s, when the Warren Court is working through this, it's, it's hard for them to separate them out.
00:07:35:40 - 00:08:06:33
Unknown
I think the question about public assembly is more is slightly different. And there I see it as more related to the sort of ideas the justices had about what democracy was and how they understood democracy in this very sort of discursive way, which, you know, I don't think I draw it out so much in the paper. But if through, you know, some of your readers might have done political theory right.
00:08:06:45 - 00:08:35:43
Unknown
This is the era of sort of a very like, you know, I mean, I think is a little bit later, but Rawls harbormaster a little bit later. But this liberal theory where everything is about like men in their bourgeois sphere having conversations and that's sort of their idea about politics, which then to some degree, the part, of course, the civil rights movement is very is, is has many elements.
00:08:35:43 - 00:09:18:55
Unknown
But the part of the civil rights movement that was privileged in sort of northern media and is the part that is the most civil right. Like, so Martin Luther King's civil disobedience certainly fits into that relatively, I'm going to call it a bourgeois version of democracy, by which I mean more theory than like class. So I do think the historical period is central, but maybe in in more ideological ways, like the combination of ideology and historical moment.
00:09:19:00 - 00:09:41:07
Unknown
Do you think that with the new cases, sort of reassessing the 14th amendment that we had recently opens up a world where the court can, you know, maybe reassess how they deal with these, what you call First Amendment rights, where they sort of place them under the Equal Protection clause.
00:09:41:12 - 00:10:13:55
Unknown
I don't really see this piece as directed toward the court, this court and what it is currently going to do. I think this court I see this piece as directed more towards the liberal and progressive end of the legal academy and social movements of saying if we want to sort of play this game for the long haul, like right now, that vision of the Constitution is gone.
00:10:13:55 - 00:10:59:19
Unknown
But if we're trying to move the ball to a more progressive, more emphasis on self-governance version of the Constitution, we need to back away from having agreed to certain commitments. And one of the commitments that I think. And that's why I tried to sort of talk about the unanimous decisions in the First Amendment area, this privileging of speech over other forms of political participation, the accepting the court sort of collapsing all the multiple rights into a right of free expression and the accepting of pluralism, the idea that you could have protect that.
00:10:59:19 - 00:11:21:02
Unknown
There are many, many reasons that we offer First Amendment protection and refusing to think of democracy and self-governance as the primary reason. I think all of those make it more difficult to get to progressive or even more liberal outcomes under First Amendment doctrine.
00:11:21:07 - 00:11:48:31
Unknown
And that's just that's just a matter of pre-commitment on the moderate and the left, apart from whatever the court would do, I think it's very unlikely that the current Supreme Court would be persuaded by this article. I think it's more an effort to try and push some of my political allies to say, maybe we should really think about this more broadly.
00:11:48:36 - 00:12:24:55
Unknown
I was really interested in the voting piece that you wrote about, and you mentioned this dichotomy between First Amendment protections of political parties versus the protection for individual voters. Can you speak a little bit to how your characterization of the First Amendment would protect the right to vote and undermine the barriers currently in place against those voters? So I think one of the things that currently goes on in voting rights litigation is that and this, again, is more of a rhetorical strategy, like, because a lot of these fights are about the law and then they're also about politics.
00:12:24:55 - 00:13:16:26
Unknown
But one of the concerns is a slippery slope argument. So it's like, well, everyone accepts there. We're not going to like repeal voter registration laws. Voter registration laws do actually burden voters. They do make it more difficult for lots of people. In fact, probably they make it more difficult for more people than the photo ID laws. Right. And you see this sort of arguments where people say, well, why would Georgia's sort of law that scales back the number of Sunday early voting days be unconstitutional when New York until like about a year ago, had the most restrictive voting laws of any state.
00:13:16:26 - 00:13:42:52
Unknown
And so I think what I'm saying is we we should be thinking about motivation, right? So we don't need to say that it's covered doesn't mean that everything gets strict scrutiny. We do need to have some election administration, but we shouldn't go from a concession that there will have to be election administration to the current regime, which basically takes that face value.
00:13:42:52 - 00:14:41:57
Unknown
Any government proffered interest like the including like in-person voter fraud, which is nonexistent, and then says, oh, we're going to throw our hands up because the burden isn't isn't that severe. And, you know, basically rational basis review applies. And what I'm saying is, actually, if you think about the concern being entrenchment, then we would be able to distinguish between situations like voter registration laws, which come with bipartisan support from situations where you have enough of a record that the reason for scaling back certain, more permissive versions is because of the perception that it will have a negative effect on the right to vote.
00:14:41:57 - 00:15:04:09
Unknown
And it also helps us get out of making it an empirical question, which the court is really bad at in both the gerrymandering case is and the voting rights case, because in the First Amendment, in the free speech cases, we never say, oh, you have to prove that this policy that favors one viewpoint is actually going to entrench that viewpoint.
00:15:04:12 - 00:15:32:12
Unknown
You just can't have a policy that entrenches a viewpoint. You don't have to empirically show that you succeed in that way. And so I think those are some advantages of thinking about it in this perspective. Would you anticipate this new analysis of the First Amendment to influence other things than what you mentioned with gerrymandering, for example, political advertisements or just the rights of political parties and funding itself as well?
00:15:32:16 - 00:16:02:14
Unknown
So I think that would it influence political advertising? I think the advertising was kind of curious as to what you were worried about with that question. And, I mean, I assumed what you were worried about was like fake news or that kind of advertising. Is that without saying fake news, right? Yeah, exactly. Because that's the inverse of like, right.
00:16:02:16 - 00:16:41:12
Unknown
Fake news is what people say when the news is real. But I mean, the actually deceitful political. So what I will say is this solution does not solve everything. Like one of my other audiences is young people like yourselves. And it might not be actually you personally, but my experience of my students is especially more liberal students, and more progressive students are increasingly super skeptical about the First Amendment, and very skeptical about the liberalism and viewpoint neutrality of the First Amendment.
00:16:41:12 - 00:17:14:01
Unknown
And I think that I'm deeply sympathetic to that worry that what it seems in the current world that we live in, anytime there's a trade off between speech and equity, equity falls, which seems to be happening in other doctrines too. Right. But there's but I think they're their equal constitutional values, though speech should also include other the democratic process more broadly.
00:17:14:02 - 00:17:49:26
Unknown
And I think this one of the other things that sort of I see in my students who are more liberal and progressive is deep skepticism about the democratic process. So. This article solves some, but not all of the problems. So I think political advertising is always going to be quintessentially part of the political process. There does have to be a marketplace of ideas, and some of that marketplace will include falsehood.
00:17:49:31 - 00:18:15:09
Unknown
Can we solve that in some ways? You know, probably this is a time where the state action doctrine is a good thing, right? Can help. It can mean private parties can limit some of the worst kinds of falsehoods. If you look at history, the people who are suppressed are the underdogs, right? Not the elites, not the people benefiting from the system.
00:18:15:10 - 00:18:55:40
Unknown
So but it does solve other. So I don't think I think we're stuck in our constitutional system is very hard for me to see that kind of regulation. But I think it does solve other kinds of problems, which is if it if you rein in what counts as the kind of speech that you have a prohibition on regulating, then you provide more opportunities to regulate in the name of equality without having to constantly run into the compelled speech doctrine or the commercial speech, which are mostly what is undermining that work.
00:18:55:40 - 00:19:30:07
Unknown
And I think you also remind people that, like, the courts might not be their best friends, right? In the long term project, not just currently, but like for the long haul, but that you have to do more to ensure that those processes work and and political parties. I mean, another piece I write about how like, we are all too skeptical about political parties because they, in my view, are more like vessels for organizing.
00:19:30:07 - 00:19:56:45
Unknown
And they can do what they, whether they do good or bad, depends on who's willing to engage in them and the kind of work they do. And I think that sort of harkens back for me personally, too, to my undergraduate ethics 101 class. Like, can we and should we protect hate speech and why? I remember sitting in those classes thinking, well, I don't know that that's really right.
00:19:56:45 - 00:20:35:16
Unknown
But, you know, it seems to be what our Supreme Court is doing. And so I think that you're sort of criticism of that was very prevalent to me as well. Right. Well, and also, I think it helps you to think more carefully and nuanced about the distinction between hate speech and a true threat. And that's another part of and especially, I think adding the assembly piece in is a way of thinking about where the risk really exists to really be able to distinguish between these situations, because, you know, Virginia versus black draws a very fine line.
00:20:35:19 - 00:21:11:09
Unknown
The problem is that people don't really haven't thought carefully about that line or how to how how to actually enforce it. But I think whether it's going to be enforced in a more balanced way between these rights of expression and the rights of equality, will depend on the kinds of arguments I'm making about how we should really be more careful about trying to think through what the amendments overarching purposes.
00:21:11:14 - 00:21:35:50
Unknown
So you discuss a necessary divide between the domain of politics and the domain of governance. And you mentioned that much of the speech that is currently protected, like some economic and public safety regulation, maybe shouldn't fall within the purview of the First Amendment protections. How would this divide affect current First Amendment jurisprudence? And where do you think that that line is for the divide?
00:21:35:55 - 00:22:06:16
Unknown
So I think that how would it affect current jurisprudence? I mean, one of the problems with the other problem with First Amendment doctrine is it's like it's like a myriad of different doctrines. That's like just one pigeonholing and one pigeonholing of another, and even the commercial speech doctrine. Like there's one case that governs it. If it's a commercial disclosure and a different case that governs it, if it's advertised, it's just chaos, right?
00:22:06:19 - 00:22:29:09
Unknown
Because what happens is like even just describing the right of assembly as it's understood. And there's like five different doctrines of, well, is it a time place, a man or is it a prior restraint? Is that, you know, sort of a dispersal order or how do we think? You know, it's just I think one thing because it would help us clarify, like what the core issues and what the court is.
00:22:29:09 - 00:22:56:33
Unknown
I think there's some like institutional history that helps us think about, well, what count as part of the political process. Right. We can name some things. Right. And then I think it will help us sort of see our intuitions about certain things, like when you read Regulating health care facilities, that sounds to me like the domain of governance, right?
00:22:56:38 - 00:23:23:07
Unknown
If you're a regulating employers and what they can and cannot ask applicants or what they should or should not disclose to workers about their labor rights, we would be squarely in the domain of governance. There are as as I talk about, there are some tricky moments where you're going to have to have some, like rebuttable Presumption and there's some gray line.
00:23:23:07 - 00:23:51:31
Unknown
But mostly what I would think I think about it is, I mean, in some ways it's going to upend a lot of cases because they've been framed, but the cases are chaotic and inconsistent. I don't know if either of you have like, taken First Amendment law, but it's it's very hard to reconcile. Like, why one case that seems to be about the same issues as in one part of the casebook and not in the other part, or like the doctrinal pieces.
00:23:51:33 - 00:24:27:00
Unknown
So I think it would have the virtue of bringing coherence. But the biggest impact will be in the compelled speech area and in the commercial speech area, because essentially, I think most commercial speech is going to be squarely in the domain of governance by the very fact of its being commerce. There will be a few cases, like the telephone case, where I think they're both regulating robocalls, which is seems like the domain of governance.
00:24:27:00 - 00:25:02:40
Unknown
But if they're regulating political will, because that's that's political speech, the kind of political speech that you might want to regulate, because it might mean a lot of falsehoods are coming to your door. But that's like the burdens that come with the First Amendment. But I think, yeah, compelled speech and commercial speech would have the most direct impact on cases, but overall, it would change the way we thought about how to organize our intuitions.
00:25:02:45 - 00:25:31:45
Unknown
So in your final section, you call for a construction of the First Amendment that protects democracy. And one of those protections that I found particularly interesting includes a recap of what it means to peaceably assemble by sort of refusing to align peaceable with legal. Do you see this as a way to give activists and protesters more political power, especially in the light of the protests that happened in the summer of 2020?
00:25:31:50 - 00:26:06:45
Unknown
Yeah, for me, and this is I mean, I've been writing about the right of assembly for a long time, longer than these other areas. But for me, the most shocking thing about the summer of 2020 would be where there were crowds that were obviously peaceable. If you use the common ordinary language of peaceable and happened in Philadelphia, the crowd, the officers are saying that peaceful protesters here on, you know, 676 and then the tear gas shows up and they disperse them.
00:26:06:48 - 00:26:33:42
Unknown
And, you know, if you think about you think about what I just said about political advertising and what we just talked about, hate speech, right? In the speech context. Like, you've got to be like right there at the moment of threat before your work. I mean, you have to not only be calling for a riot, but it has to be likely that the riot is going to occur like that's the level of the Brandenburg state.
00:26:33:47 - 00:26:57:02
Unknown
And then somehow in the protest context, where you actually where, you know, a single person on a soapbox does not have that much political power, but a group of people on the street, sort of whether it's this kind of protest march or sort of just gathering to assemble, like occupy, to try and sort of rethink what priorities were.
00:26:57:07 - 00:27:23:40
Unknown
That organizing is where is what is better able to demand responsiveness. And from my perspective, like what we're struggling with right now in politics. And the reason people have so little faith in our democratic institutions is, is hard for them to see what those democratic institutions are delivering, right? I mean, there's like deep and I certainly think that was a lot of what was motivating those crowds in 2020.
00:27:23:43 - 00:27:53:48
Unknown
Like, what are we getting out of government? Not not just around policing, but more broadly, like the impacts, the disparate impacts of the Covid pandemic on communities of color, like just there's like a lot. And so but then in that context, you have these peaceful crowds and they get dispersed. And the litigation frustrated me because the litigation was like, well, you shouldn't be able to disperse mature gas.
00:27:53:52 - 00:28:25:24
Unknown
It's like, well, I don't think you should be able to disperse them. Period. Why why are we talking like and, you know, I've been working on a separate project with international lawyers, you know, international law. The things that we take for granted are actually violation of international law. International law has a strong presumption for a notice requirement, not a permanent requirement, and a very clear sense that dispersal orders depend on nonviolence.
00:28:25:28 - 00:28:50:04
Unknown
And, you know, because international systems have more in place to do balancing, they do have strategies for like the truckers in Canada who blocked up the city for a week. And so then there's in fact, there's, I learned a European court case which basically said, you get you get 48 hours, you can shut down the city for 48 hours.
00:28:50:12 - 00:29:15:07
Unknown
That would still be a lot better than what we currently have. Like, we're so far from there that I'm not ready to say like violence unless it's been 40 hour, 48 hours. But but I think part of the point for me is that it's just so surprising how willing people are, are to not even think about why that's problematic.
00:29:15:12 - 00:29:40:04
Unknown
And maybe this is a skeptical view, but do you think that, you know, it's almost how much power there is in assembling and in voting that that is maybe why those particular powers are under protected. Whereas, you know, like you said, somebody on a soapbox isn't going to have that much political power, but they seem to have a lot of protection for that speech.
00:29:40:09 - 00:29:46:48
Unknown
You know, it's it's tough. I don't tend to think about.
00:29:46:52 - 00:30:29:36
Unknown
I don't tend to think about what drives constitutional doctrine in those terms. I think, but I don't think you're necessarily wrong. But I don't. But I don't think it was like the justices in the Warren Court were like, oh, you know, well, let's give them a little bit of freedom, but not too much freedom, right? Like, I think it was if the the holdings of those cases, they didn't really let in most of those cases, the, the southern states get away with dispersing those crowds.
00:30:29:38 - 00:30:57:04
Unknown
They just didn't commit to recognizing that it was the right of assembly and that there shouldn't be a conduct discount. So for me, it's and this is why I sort of made some maybe a little bit off the cuff cracks about bourgeois men sitting around talking. But I think it's that version of power. I think when you're in power, you might not remember that you need like muscle and organization because the power is just there.
00:30:57:04 - 00:31:21:16
Unknown
You don't even notice your power, right? So then you can think like the reason that you're in power is because your ideas are so wonderful. And the in the marketplace of ideas, they have succeeded. When you're out of power, you realize like, oh, well, ideas get to be prominent partly because of institutions and who says them. And the fact that you're on the Supreme Court, you get to define what the Constitution means, like all of those.
00:31:21:19 - 00:31:39:24
Unknown
So I think it's more the unintended consequences of the ideology that is driving the court that doesn't necessarily notice its own power.
00:31:39:28 - 00:32:21:02
Unknown
I'll just kind of as a concluding question, what do you want readers and listeners to take out the most from your paper, and what do you think the next steps are? So I think for me, what I want people to take most out of it is to notice that most is to notice that the First Amendment actually protects a bunch of political conduct from the free press, which is an institution, to public assembly, and therefore to notice that it's really not such a great leap to recognize that the right to vote is part of that political participation.
00:32:21:02 - 00:33:00:38
Unknown
And I think if we had an understanding that the First Amendment function to secure the democratic process, not to limit it, that would be it's a very I think it's a very counterintuitive idea, because we mostly think of amendments as limiting the democratic process. I think that would go a long way for us rethinking these issues. And I think in terms of so that would be my big idea, which is not a very which is a very abstract idea, but I think it's an important one in terms of next steps.
00:33:00:38 - 00:33:44:00
Unknown
I feel like the part that I really want to develop is to try and develop for specially younger lawyers and activists, the domain of of sorry, the domain of governance as a place they might want to be like, you know, like I think there's so much sort of focus, especially in the activist world, on the courts and litigation and all of the democratic dysfunctions that I sort of feel like a project needs to sort of remind the world, like what democratic institutions can do.
00:33:44:02 - 00:34:21:55
Unknown
And by the Democratic Institute doesn't have to only be the legislatures. I mean, I think right now most of our governance happens in administrative agencies, but they are also under attack by the current like courts. So I think part of it is to remind people who who are not as conservative as the current Supreme Court that the that there is value in democratic governance and that it's really hard to figure out how to get government to produce things for you, but that that should be the locus of the energy.
00:34:21:55 - 00:34:48:45
Unknown
And in that regard, one thing I like about the the sort of Black Lives Matter movement and the allies that it has generated since 2020 is I do think there is more of a demand that like, you know, like student loans to be forgiven. And we would like community college to be paid for. And, you know, like, like actual minimum wages to be raised.
00:34:48:50 - 00:35:13:55
Unknown
And I think that's a positive direction. But to sort of theorize that a little bit more that I think is the next step. Well, thank you so much for joining us and giving us some insight about your really important article. I know that both marine and I enjoyed reading it and both very much enjoyed our conversation today. So thank you and thank you.
00:35:13:55 - 00:35:45:31
Unknown
And I so much enjoyed working with the Minnesota Law Review and with the editors. And it's always exciting when students are excited about a piece. I feel like that's always my best experiences with law review editorial processes when you actually capture the imagination of your students. So I said I was writing partly for progressive as, but partly also, I think, to hopefully inspire the next generation to sort of think about the Constitution and the First Amendment in particular a little bit differently.
00:35:45:36 - 00:35:53:43
Unknown
Thank you so much. I really appreciate it. Thank you.
00:35:53:48 - 00:36:21:52
Unknown
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Unknown
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