- Mark Brnovich, Arizona Attorney General
On November 3, 2014, the Supreme Court heard oral argument in Zivotofsky v. Kerry. This case concerns Section 214(d) of the Foreign Relations Authorization Act of 2003, which directs the Secretary of State, upon request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport. The question before the Court is whether this provision unconstitutionally infringes on the President’s power to recognize foreign sovereigns.
To discuss the case, we have Eugene Kontorovich, who is a Professor of Law at the Northwestern University School of Law.
In recent years, many state and local governments have encountered severe fiscal problems, partly because of the recession and financial crisis, and partly because of long-term pension and other obligations that outstrip revenue. This raises a number of important policy and legal questions, such as the extent to which it is desirable for federal and state governments to "bail out" fiscally troubled jurisdictions, and whether or not such governments can default on any of their obligations. If state or local governments become more dependent on federal funding, that may also have implications for the long-term future of American federalism. Our panelists, Prof. Sanford Levinson and Prof. David Skeel considered these issues.
The government (federal, state, and local) offers a wide range of benefits to groups. Some benefits are monetary subsidies. Some consist of access to government property such as university classrooms and bulletin boards. Some of the most important benefits are income and property tax exemptions, which the Supreme Court has said are tantamount to subsidies. What sorts of speech-restrictive conditions may the government impose on such subsidies? May the government insist that benefited groups refrain from using the benefits for religious commentary, for electioneering and lobbying, for speaking about abortion, or for creating “indecent” or “disrespectful” art? May the government insist that benefited groups not discriminate in their choice of leaders or members? May the government insist that benefited groups affirmatively expressive certain views (such as opposition to prostitution)?
This issue has divided the Court in a wide range of cases, such as Rust v. Sullivan, Rosenberger v. University of Virginia, NEA v. Finley, Christian Legal Society v. Martinez, and, most recently, USAID v. Alliance for Open Society International. It has also come up in the news, with the IRS’s investigation of Tea Party groups that apply for tax-exempt status – such investigations are closely tied to the statutory restrictions on electioneering and lobbying by tax-exempt groups. And the issue has in recent years sometimes inverted the usual partisan divides: in Rosenberger and Christian Legal Society, for instance, it has been the conservatives who have argued for free speech restriction even when government-provided benefits are involved, and the liberals who have argued that speakers who accept government benefits must also accept the restrictions imposed on those benefits.
The Free Speech & Election Law Practice Group hosted this panel on "The First Amendment and Government Benefits" on Friday, November 15, during the 2013 National Lawyers Convention.
Free Speech: The First Amendment and Government Benefits
3:30 p.m. – 5:00 p.m.
The Freedom of Information Act has been the subject of several recent developments, each of which raise interesting questions. On April 2, 2013, the U.S. Court of Appeals for the D.C. Circuit ruled in Citizens for Responsibility and Ethics in Washington v. FEC that an agency FOIA determination must include disclosure of the relevant time period and scope of the documents it will produce as well as exemptions claimed for any withheld documents. Will agencies now refuse to disclose the scope of documents and exemptions unless and until a FOIA requester brings a lawsuit? If so, does the decision really enhance transparency? In McBurney et al v. Young, the Supreme Court held that the Virginia Freedom of Information Act (FOIA) grants only citizens of Virginia the right to access the state of Virginia’s public records. Does McBurney harm transparency? On April 15, 2009, Gregory Craig, Counsel to the President, sent a memorandum to all executive department and agency general counsels, concerning the need to consult the White House regarding FOIA, GAO, congressional and judicial subpoena requests concerning “white house equities”. To what extent does this memo conflict with the current Administration’s policy on FOIA?