Pamela S. Karlan Inaugurates First Amendment Lecture Series
Pamela S. Karlan, one of the nation's leading experts on voting and the political process, spoke on "The Court, the Closet, and the First Amendment" in the inaugural Central Valley Foundation/James B. McClatchy Lecture on the First Amendment in the Kalmanovitz Appellate Courtroom on September 29.
Following introductory remarks from Dean Kevin R. Johnson, Associate Dean Vikram Amar, and Susan McClatchy of the Central Valley Foundation, Karlan discussed the ways in which First Amendment considerations impacted a set of recent Supreme Court decisions including Hollingsworth v. Perry and Doe v. Reed.
Karlan said that during the recent term, the Supreme Court enjoyed "a First Amendment feast" as political battles over same-sex marriage and changing communications technology brought a range of First Amendment-related issues before the Justices. While the Court ultimately is likely to rule on same-sex marriage directly, it has already faced a number of marriage equality-related cases, she said.
Karlan spoke at length on Hollingsworth v. Perry, in which the Court granted a stay to prevent the broadcast of proceedings in Perry v. Schwarzenegger, the federal court challenge to California's Proposition 8. Karlan suggested that the stay, which ostensibly was granted based on the district court's failure to give appropriate public notice before modifying a rule to permit the broadcast, was influenced by concerns that broadcasting the hearings could expose to harassment witnesses giving testimony in support of Prop. 8.
"Hollingsworth marked the first articulation in the Supreme Court of this idea that supporters of traditional marriage are at substantial risk of unfair treatment and therefore deserving special judicial solicitude," she said. "I actually think at this point it looks like the Court is more concerned about the constitutional rights of people who support traditional marriage than they are concerned about people who want marriages and can't get them."
The Court faced a similar issue in Doe v. Reed, Karlan said, where attempts to obtain disclosure of the names of voters in Washington state who signed a petition in support of a referendum on the state's expansion of the rights of same-sex couples were opposed by groups that sponsored the referendum. While the Court held that releasing the names does not violate the petition signers' right to privacy, some of the Justices expressed concerns about how new information technologies may be creating dangers associated with the disclosure that did not exist in prior times.
"This and a number of other First Amendment issues are going to have to work themselves out over a long period of time," said Karlan. "In the meantime, the marriage question has begun to shape, with an almost gravitational pull, the development of constitutional law more broadly" in the same way that civil rights issues drove many decisions for the Warren Court.
"I think we will see in our own time that the marriage equality debate will have a similar effect on the First Amendment, influencing our understanding of privacy, of freedom of association, of media access to the courts, and other issues as well," said Karlan.
The Central Valley Foundation/James B. McClatchy Lecture on the First Amendment is supported by the Central Valley Foundation, which was established by the late McClatchy Company newspaper publisher James B. McClatchy to support programs and organizations dedicated to the enhancement and protection of First Amendment rights. Karlan's lecture was the first in what will be a series of five annual events.