First Amendment News 299.1: Larry Tribe — First Amendment appellate lawyer and scholar

To commemorate the 300th posting of First Amendment News, I invited Professor Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law (emeritus) at Harvard Law School, to participate in a “Question and Answer” exchange. He kindly agreed. That exchange will appear in the next issue of First Amendment News.

Below is an introductory statement by one of Professor Tribe’s former students; it is followed by a bibliography of Tribe’s remarkable contributions to First Amendment law, both as a litigator and scholar. — RKLC

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I had the unique experience of being a student in Larry Tribe’s Constitutional Law course while he was writing his pathbreaking “Constitutional Law” treatise, which was an innovative endeavor to chart the overall structure of constitutional law and the complex and fascinating interrelationships among various aspects of it.

His special approach to teaching that course made an indelible impression on me not only as a student but also as a professor. Stating that students could more meaningfully understand and discuss any single con law issue only after having been exposed to the overarching themes that his treatise was exploring, he lectured us about those themes for the first third of the course, so that we could engage in more enlightened, in-depth exchanges about particular issues for the remainder of the course. Hence I was introduced to First Amendment issues as an integral aspect of broader constitutional issues, also linked to other constitutional provisions. For example, I understood that the First Amendment played as essential a role as the Fourteenth Amendment in fostering the civil rights movement, and in curbing power abuses by state and local officials.

— Nadine Strossen

Litigation, Scholarship, Public Media Appearances, Legislative Testimony, Op-eds & Miscellaneous Documents of Laurence Tribe

Supreme Court cases

Freedom of speech & press cases (the case links below also include links to oral arguments)

1. Johanns v. Livestock Marketing Association (2004) (commercial speech)
2. Nike, Inc. v. Kasky (2002) (commercial speech)
3. United States v. United Foods, Inc. (2000) (commercial speech)
4. Timmons v. Twin-Cities Area New Party (1997) (freedom of association)
5. Rust v. Sullivan (1990) (limits on government-subsidized speech)
6. Sable Communications of California v. Federal Communications Commission (1988) (sexual expression: non-obscene “dial-a-porn” services)
7. Board of Ed. of Oklahoma City v. National Gay Task Force (1985) (free speech rights of public school teachers)
8. Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission (1982) (commercial speech)
9. Heffron v. International Soc. for Krishna Consciousness, Inc. (1980) (public forum)
10. Richmond Newspapers Inc. v. Virginia (1979) (press access to criminal trial)
11. Boston v. Anderson (1978) (no oral argument — state court may not prohibit free speech by municipality on referendum issue)

Religion cases (the case link below also includes a link to the oral arguments)

1. Larkin v. Grendel’s Den, Inc. (1982) (establishment clause)

Lower courts cases

 Freedom of speech & press cases

1. United States of America v. Flynn (U.S. Dist. Ct., D.C., amicus brief) (May 22, 2020)
2. West, Inc. v. FCC (10th Cir., 1998) (no. 98-3451) (brief for Appellant)
3. hiQ Labs, Inc. v. LinkedIn Corporation (CA9, 2019) and 273 F.Supp.3d 1099 (ND Cal, 2017)
4. Chesapeake and Potomac Telephone Co. of Virginia v. U.S., (ED Va), aff’d, 42 F.3d 181 (CA4, 1994)

Briefs assisted on

1. Knight First Amendment Institute v. Trump (Oct. 18, 2018) (listed as one of amici curiae)

Books

Freedom of speech, press & related matters

1. Laurence Tribe & Joshua Matz, “Uncertain Justice: The Roberts Court and the Constitution” (Henry Holt & Co., 2014), pp. 88-120 ( ch. 3: “Campaign Finance: Follow the Money”) and pp. 121-153 (ch. 4: “Freedom of Speech: Sex, Lies and Video Games”)
2. Laurence Tribe, “Speech as Power: of Swastikas, Spending, and the Mask of ‘Neutral Principles,’” in “Constitutional Choices” (Harvard University Press, 1986), pp. 188-220
3. Laurence Tribe, “American Constitutional Law” (2nd, Foundation Press, 1989) § I2-1 passim

Scholarly articles  

Freedom of speech, press & related matters

1. Laurence Tribe, “Dividing Citizens United: The Case v. the Controversy,” 30 Constitutional Commentary 363 (2015)
2. Laurence Tribe, “Disentangling Symmetries: Speech, Association, Parenthood,” 28 Pepperdine Law Review 3 (2001)
3. Laurence Tribe, “The Mystery of Motive, Private and Public: Some Notes Inspired by Hate Crime and Animal Sacrifice,” Supreme Court Review 1 (1993)
4. Laurence Tribe, “Public Rights, Private Rites: Reliving Richmond Newspapers for My Father,” 5 Journal of Appellate Practice 163 (2003) (this essay first appeared at 6 Green Bag 2d 289 (2003))
5. Laurence Tribe, “Toward a Metatheory of Free Speech,” in Ronald Collins, editor, “Constitutional Government in America” (Carolina Academic Press, 1980), pp. 1-7 (reprinted in 10 Southwestern University Law Review 237 (1978))

Legislative testimony

Freedom of speech, press & related matters

1. Letter to Seattle City Council, (Jan. 30, 2020) (Re: “Proposed ordinance to limit political spending by foreign-influenced corporations”)
2. Letter to St. Petersburg City Council, (Oct. 25, 2016) (Re: Regulation of PACs)
3. Testimony before Senate Commerce Committee, Hearing on “Media, Violence & Children,” C-SPAN (June 26, 2007)
4. Testimony before Senate Judiciary Committee, Hearings on “Raising Tobacco Prices: New Opportunities for the Black Market?,” 105th Cong., 2nd Sess. (April 30, May 12, and May 13, 1998) p. 125 (Re: Restrictions on tobacco advertising)
5. Testimony before Senate Judiciary Committee, (July 16, 1997) p. 70 (Re: Restrictions of cigarette advertising).
6. Hearings on Statutory and Constitutional Responses to the Supreme Court Decision in Texas v. Johnson, 101st Cong., 1st Sess. (July 13, 18, 19 and 20, 1989) (statement of Laurence Tribe at 112) (arguing against a constitutional amendment to overrule Johnson)
7. Testimony before the Subcommittee on Elementary, Secondary, and Vocational Education of the Committee on Education and Labor, House of Representatives, 98th Cong., 2nd Sess. (March 28, 1984), p. 46 passim (Re: Religious Speech Protection Act)
8. Letter to Senator Orrin Hatch, Senate Judiciary Committee, (Re: Religious Speech Protection Act) (S. 815) (April 11, 1983), p. 332 passim

Miscellaneous: Tributes, op-eds, news stories, letters, etc.

Freedom of speech, press & related matters

1. Laurence Tribe, “First Amendment fantasies in the social media debate,” The Hill (May 11, 2021)
2. Norman Dorsen, “Tribute to Laurence Tribe,” New York University Law (March 14, 2021) (“Larry Tribe marched to no other drum but his own. Independence could be his middle name. I remember the time I wrote him after he supported the position, most notably advanced by Professor Catherine McKinnon, that in some circumstances pornography could be censored because it had a causal relationship to violence against women, a position contrary to the ACLU’s strong First Amendment policy on free expression. I berated him for his apostasy. Instead of telling me to get lost, he took the trouble to write at length and to observe that he considered himself open to new ideas, including the ideas of ‘radical feminism.’ Of course, Larry was politely suggesting that the ACLU should also be open to new ideas of civil liberty.”)
3. Reed Richardson, “Laurence Tribe Smacks Down Trump Impeachment Team’s Free Speech Defense: Like ‘Being the Fire Chief and Urging a Mob to Burn the Theater Down’,” Mediaite (Feb. 2, 2021)
4. Laurence H. Tribe & Joshua A. Geltzer, “Trump is doubly wrong about Twitter,” The Washington Post (May 28, 2020)
5. Robert Schroeder, “‘Totally absurd and legally illiterate’ — Harvard law prof on Trump’s charge Twitter is stifling free speech,” MarketWatch (May 27, 2020)
6. Joshua Geltzer & Laurence Tribe, “When Trump Blocks You on Twitter, He’s Violating the First Amendment,” Politico (March 20, 2019)
7. Laurence Tribe, “The public has a right to hear Stormy Daniels, Mr. President,” The Washington Post (March 23, 2018)
8. “Interview with Laurence H. Tribe,” Edward M. Kennedy Institute (2016) (discussing work with Senator Edward Kennedy. Re: opposing a proposed constitutional amendment that would give Congress the power to outlaw flag burning).
9. “Blaming Citizens United is an ‘Oversimplification,’ Tribe Says,” The Harvard Crimson (Nov. 10, 2015)
10. Laurence Tribe, letter to “Nancy Fletcher, President, Outdoor Advertising Association of America” (Sept. 11, 2015) (Re: applying the First Amendment to regulations distinguish between off-premises and on-premises signs after Reed v. Town of Gilbert)
11. Benjamin T. Brickner, “The Distillery: Tribe on Citizens United: Right Result, Wrong Logic,” Brennen Center (Aug. 31, 2015)
12. Laurence Tribe, “The First Amendment Should Protect Disfavored Viewpoints,” The New York Times (Aug. 20, 2014)
13. Laurence Tribe, “The ‘Stop Online Piracy Act’ (SOPA) Violates the First Amendment” (2011)
14. Laurence Tribe, “Laurence Tribe on Citizens United v. Federal Election Commission,” Harvard Law Today (Jan. 25, 2010)
15. Laurence Tribe, “What Should Congress Do About Citizens United?,” SCOTUSblog (Jan. 24, 2010)
16. Laurence Tribe, “The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier,” Electronic Frontier Foundation (1991)
17. “Flag Burning Measures Debated,” The New York Times (July 19, 1989, Associated Press) (“At a meeting on the House subcommittee on constitutional law, Laurence Tribe, a law professor at Harvard University, said: ‘There are many patriotic  Americans who believe that the toughest but best way to show respect for the flag, to show why were are so different from those in Beijing who massacre protesters, is to protect even the freedom of those who would desecrate this symbol of our freedom.’”)
18. Laurence Tribe, “Protect It – And Ideas,” The New York Times (July 3, 1989)

Cable, Twitter & YouTube

Freedom of speech, press & related matters

1. Eugene Volokh, “Laurence Tribe, Several Others, and Me on ‘The Free Speech Implications of the ‘De-Platforming’ of Donald Trump,” The Volokh Conspiracy (May 27, 2021)
2. Laurence Tribe, Tweet (April 8, 2021) (“For Justice Thomas, ‘it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.’ Hardly! Imagine a president renting a private hotel to conduct a nationally televised town hall.”)
3. Laurence Tribe, Tweet (April 8, 2021) (“Justice Thomas says ‘applying old doctrines to new digital platforms is rarely straightforward.’ Maybe, but the easiest way to miss the forest for the trees is to bury straightforward principles of free speech under a pile of crooked technological twigs.’”)
4. Commentary, The Last Word with Lawrence O’Donnell, MSNBC, April 5, 2021 (Re: lawsuits by Capitol police against Donald Trump)
5. “Larry Tribe discusses Trump’s 2nd impeachment trial: The Senate was wrong to acquit Trump,” Influencers with Andy Serwer (Feb. 19, 2021)
6. “Election Law Series | Laurence Tribe,” Harvard Law School (Nov. 10, 2015) (“As part of this year’s Election Law Series at Harvard Law School, Professor Laurence Tribe delivered a lecture ‘The Impact of Citizens United,’ in November.”)
7. “Laurence Tribe: The Supreme Court and the Constitution,” The Commonwealth Club (June 12, 2014) (discussing Citizens United, among other cases)

The U.S. Supreme Court has cited various editions of Tribe’s treatise, ‘American Constitutional Law,’ in the following First Amendment cases:

• Thompson v. Western States Medical Center (2002)
• Hill v. Colorado (2000)
• Calif. Democratic Party v. Jones (2000)
• City of Erie v. PAP’S A.M. (2000)
• 44 Liquormart v. Rhode Island (1996)
• Lebron v. National R.R. Corp. (1995)
• Capitol Square Review & Advisory Board v. Pinette (1995)
• Leathers v. Medlock (1991)
• Renne v. Geary (1991)
• Osborne v. Ohio (1990)
• United States v. Kokinda (1990)
• Boos v. Berry (1988)
• Chicago Teachers Union v. Hudson (1986)
• Wallace v. Jaffree (1985) (religion)
• Minneapolis Star & Tribune Co. v. Minnesota Dept. of Revenue (1983)
• Anderson v. Celebrezze (1983)
• New York v. Ferber (1982)
• Democratic Party of  Wisconsin v. United States (1981)

Religion cases

• Van Orden v. Perry (2005)
• Board of Education v. Mergens (1990)
• County of Allegheny v. ACLU (1989)
• Widmar v. Vincent (1981)
• McDaniel v. Paty (1978)

Congressional testimony quoted in Supreme Court cases  

Tribe’s congressional testimony is cited in McCulllen v. Coakley (2014) — in footnote four the Court cited a law review article by Michael McConnell that quotes Tribe’s congressional testimony. The Tribe quote was about the Supreme Court ruling in Hill v. Colorado (2000): “‘I don’t think [Hill] was a difficult case. I think it was slam-dunk simple and slam-dunk wrong.”

The Court also cited Tribe’s congressional testimony in the copyright case Sony Corp. of America v. Universal City Studios (1984) (not a First Amendment case though it involves discussion of the fair use doctrine).

Last scheduled FAN

• FAN 299: “New Florida law bars tech companies from banning political candidates on social media platforms”

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