First Amendment News

Bobby Burchfield (credit: Bobby Burchfield)

Bobby Burchfield pledges $4.5 million to create a First Amendment chair at GW Law — FAN 332

Floyd Abrams: "The extraordinary generosity of Bobby Burchfield in establishing a First Amendment chair at George Washington Law School should be recognized as a notable contribution not only to that estimable institution but to the nation as a whole."

March 23, 2022

Bobby Burchfield graduated from George Washington University Law School in 1979; he was editor-in-chief of the law review (his student note: “Suggested Limitations on Application of in Personam Standards to State Jurisdictional Questions: A Critique of Shaffer,” 46 Geo. Wash. L. Rev. 581 (1978)). He clerked for the Honourable Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit. As his life clock moved on, he became a highly regarded commercial law litigator in Washington, D.C.

GW Law logo
He is likewise well known for his expertise in political law, typically for Republican politicians (see e.g. See David Montgomery, “Rick Perry, Fighting Charges, Hires High-Profile Legal Team in Texas,” The New York Times (Aug. 19, 2014)). Among other things, Mr. Burchfield served as General Counsel for President George H.W. Bush’s re-election campaign, and from 2005 to 2007, by appointment of President George W. Bush, as a member of the Antitrust Modernization Commission. At the request of President Trump, he served as the Independent Ethics Advisor to the Donald J. Trump Revocable Trust, which held the president’s business assets (see also Burchfield, “Ethics in the Executive Branch: The Constitutional, Statutory, and Ethical Issues Faced by the Ethics Advisor to a President Holding Immense Wealth,” 22 Tex. Rev. L. & Pol. 265 (2017-2018)).

In the First Amendment area, he argued McConnell v. Federal Election Commission (2003) and McCutcheon v. Federal Election Commission (2014). As an adjunct professor at GW Law, he recently taught a class entitled “Fundamentals of Free Speech as Applied to Contemporary Issues.” His many ties to his alma mater go well beyond that, so much so that this year the Burchfield Family Charitable Foundation pledged $4.5 million to establish an endowed chair titled the “Burchfield Professorship of First Amendment and Free Speech Law” (see also Bobby R. Burchfield and Robert K. Kelner, “Great Cases, Like Hard Cases, Make Bad Law,” 3 Election Law Journal 211 (2004)).

Below is a Q&A I did with Mr. Burchfield to discuss the pledge he recently made to GW Law. — rklc


COLLINS: Thank you Mr. Burchfield for agreeing to do this Q&A for First Amendment News and thank you for your generous gift to the First Amendment community via your donation to the George Washington Law School.

BURCHFIELD: Thanks, Ron. I’m honored that you would ask.

QUESTION: George Washington Law School has had some noted First Amendment free expression scholars such as Jerome Barron and C. Thomas Dienes. Did you ever have any classes from them? Did they or any other faculty members spark an interest in you as a law student when it came to free speech issues?

BURCHFIELD: Although Professor Dienes came to GW after I graduated, Professor, and later Dean, Jerome Barron taught my Civil Procedure class, and we used their text in my constitutional law class. Dean Barron was one of the favorite professors at GW Law for decades, and I am always delighted to see him at GW events.

QUESTION: Why is freedom of expression so important to you? Why do you value it so?

BURCHFIELD: For me, free speech is at the apex of public policy goods. Without it, we cannot have free and informed elections, we cannot debate important policies, we cannot criticize the government or government officials for ineptitude or corruption, and we cannot even engage in free commerce. As a Nation, the United States is unique in its commitment to free speech in the First Amendment, but even beyond that, the commitment to free speech is engrained in the American soul. Almost two centuries ago, Alexis De Tocqueville observed the strong and unique commitment of Americans to an unrestricted press and free debate. This commitment to free speech has been instrumental to the success of the great democratic experiment that is the United States of America.

QUESTION: Before I get to the question about why you selected GW Law, why did you decide to pledge such a large gift to create a chair in First Amendment law?

BURCHFIELD: At the current time, free speech is under assault in the United States, even from some of its historic allies. My sense is that the current generation of law students may not have studied the free speech tradition before arriving at law school with the same intensity that my generation did. The endowment is set up so that the Professor will, I hope, teach not only the law but the philosophical basis for free speech and the important legacy of free speech in this country, and will become a leading voice in the nation for free speech.

QUESTION: Why GW Law School? You endowed a chair, correct? Will it bear your name?

BURCHFIELD: I have been very fortunate in my legal career and strongly believe in noblesse oblige, paying it forward. GW Law School is my alma mater. I have supported it, as well as my undergraduate school Wake Forest University, for many years as both a volunteer and a patron. In addition, with its location here in the nation’s capital, GW Law is the perfect place to establish this professorship, which will be known as the Burchfield Professorship of First Amendment and Free Speech Law.

QUESTION: Can you give us some idea of how the process of making the donation you did began and evolved? Were you approached or did you approach someone at the law school? Was it the dean and/or others?

BURCHFIELD: This project has been in my mind for several years, at least since 2018. Early in 2021, I had coffee with the then-recently appointed dean, Dayna Bowen Matthew, and raised the issue with her. From that conversation, it took over a year to finalize the four single-spaced page agreement.

QUESTION: Pardon my asking, but why did the Burchfield Family Charitable Foundation settle on a gift of $4.5 million?

BURCHFIELD: The law school set the value of a fully-endowed professorship. This will be the first fully-endowed professorship at GW Law School.

QUESTION: As you well know, giving large sums of money to a university can be a risky business if you have some specific purpose in mind. Did you consult with others (people other than me) in making your decision? If so, can you tell us a little about that?

BURCHFIELD: I am well aware that some donors have been disappointed when their gifts to institutions of higher learning have not been used as the donors intended. For that reason, and because this professorship will be perpetual, the gift agreement is as well-crafted to set forth my goals for the professorship as I could, with the advice of some other very able lawyers, make it.

QUESTION: Did you enter into some kind of contractual arrangement or agreement of understanding with the law school? If so, were there any parameters as to how your gift should or should not be used?

BURCHFIELD: Yes. The gift agreement requires that:

The holder of the professorship will be a nationally prominent expert in First Amendment and Free Speech Law who is a proponent of free and open discussion and debate and an opponent of efforts to prevent or hinder the oral, written, or broadcast publication of such free and open discussion and debate. The individual holding the professorship will fully support both “the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” and academic freedom.

As your readers will recognize, the quotation is from New York Times v. Sullivan.

QUESTION: I gather the endowed chair is titled the “Burchfield Professorship of First Amendment and Free Speech Law.” Is that correct? So it is limited to that aspect of the First Amendment?

BURCHFIELD: That is the name of the professorship. My intent is for the focus of the professorship to be on free speech, not necessarily limited to free expression issues precisely falling within the First Amendment. But I also recognize that a prominent scholar in this area will likely teach broader courses on the First Amendment.

QUESTION: Is it within the parameters of your arrangement with the law school to have a First Amendment clinical professor?

BURCHFIELD: That would be a great idea, but is not the focus of this agreement.

QUESTION: Do you have any say in the selection process? If so, tell us about that.

BURCHFIELD: Selection of the professor will be, as all faculty selections are, by the law school’s dean. I am entitled to propose, interview, and comment on candidates. I would, of course, invite qualified candidates to apply for the position.

QUESTION: When it comes to the First Amendment, would you prefer a professor more in the mode of Chief Justice John Roberts or Justice Elena Kagan? If so, which one and why?

BURCHFIELD: Respected justices, both, but I will stand by the description in the agreement.

QUESTION: Apart from the First Amendment cases you argued, can you name two First Amendment freedom of expression cases that you think are especially important in advancing the kind of freedom you think important?

BURCHFIELD: This is almost like asking me to choose among my friends. At the risk of not naming some important ones, I believe New York Times v. Sullivan remains essential to protect critics of the government. And I believe the flag-burning cases, Texas v. Johnson and United States v. Eichman, are important decisions protecting symbolic protests. And I choose those notwithstanding my conservative political leanings.

QUESTION: What areas of First Amendment law concern you most and why?

BURCHFIELD: As just a few examples, in the current environment, I think the challenge of balancing speech by controversial speakers with the rights of protestors is very important. Issues of academic freedom and speech on campus are also very important. And I believe the protection of political speech in the context of campaign finance regulation continues to be important. Although not a First Amendment problem, I am also concerned about the suppression of speech in the private sector. Emerging technologies may also present important free speech issues.

QUESTION: Ilya Shapiro is a noted First Amendment figure with lots of First Amendment experience. How would you feel if he were to be selected to be the first occupant of your chair?

BURCHFIELD: It is probably best for me not to comment publicly on particular hypothetical candidates.

QUESTION: Forgive me again: Have you given any thought to giving to any other school or organization?

BURCHFIELD: I support many organizations, but in the educational arena I’ll mention just a few. A number of years ago I established a chair in political economy at Wake Forest University. I have endowed scholarships at both GW Law School and Wake Forest University. In addition, I support the Institute for Humane Studies, and the Foundation for Individual Rights in Education (“FIRE”). My website sets forth some of my philanthropic efforts.

QUESTION: Is the selection of the person to fill the chair limited to professors? What about noted First Amendment lawyers? Might they stand a chance? How do you feel about that?

BURCHFIELD: Some of the best professors I had in law school began their careers as practicing lawyers.

QUESTION: Is there any timeframe for selecting someone? If so, what is it?

BURCHFIELD: The law school will begin the search in the very near future.

QUESTION: Once someone is selected, will there be any ceremony and/or some kind of inaugural lecture?

BURCHFIELD: I hope. Want to come?

QUESTION: It is often the case that many years after a chair is established few know or remember anything about the person who donated the money. Does that concern you? Has the law school agreed to do anything to help prevent that sort of loss of philanthropic memory?

BURCHFIELD: As much as we all want to live forever, my concern is that the professorship continues perpetually, well beyond my days, to advance and defend free speech in this country.

QUESTION: Does the person selected have to teach a First Amendment class each semester or year, or would be enough if he or she taught a constitutional law class that included that subject?

BURCHFIELD: The gift agreement doesn’t address that, but I would like to see the professor teach a free speech and/or a First Amendment course each semester. My recent experience is that there would be sufficient student interest in it.

QUESTION: Would the person selected be obligated to publish (or practice within the boundaries of what is allowed) in the area of First Amendment law or would that be optional?

BURCHFIELD: Again, the gift agreement doesn’t address that, but I would hope so. I believe there are many topics in the area of free speech, both topics within the First Amendment and those involving private restrictions on speech, that could benefit from thoughtful scholarship.

QUESTION: Would you like to audit (or team-teach?) any of the classes taught by the person selected?

BURCHFIELD: Time permitting, yes!

QUESTION: What’s next in the life of Bobby Burchfield?

BURCHFIELD: Last March, I retired from the active practice of law. I have agreed to reprise my free speech seminar at GW Law School in the spring semester of 2023. I continue to serve on a number of philanthropic boards. I am considering some writing and speaking. And I have my hands full with my two golden retrievers, Luxor and Nino. (Yes, I did name the latter after the late Justice Antonin Scalia.)

CUNY students petition to cancel Emmett Till opera 

A petition to cancel a CUNY school production of an opera about Emmett Till written by a white woman was gaining steam Saturday.

More than 11,000 people had signed the appeal to close the curtains on “Emmett Till, A New American Opera” at John Jay College’s Gerald W. Lynch Theatre next week, agreeing with a student who said the show was about the librettist Clare Coss’ “white guilt.”

[. . .]

The play, written by Coss and composed by Mary D. Watkins, who is black, “explores themes of social justice, the flaws within the justice system, white silence and allyship, racial inequality and the complexities of the human experience,” according to its synopsis.

Petition author Mya Bishop alleged the opera frames the tragedy through the eyes of a “fictional progressive white woman,” a teacher in the production.

“Clare Coss has creatively centered her white guilt by using this play to make the racially motivated brutal torture and murder of a 14-year-old child about her white self and her white feelings,” Bishop wrote.

Related

Colb on Masterpiece Cakeshop case

Prof. Sherry F. ColbProf. Sherry F. Colb

The Supreme Court will very likely hold that the web designer has a First Amendment free speech right both to discriminate against same-sex weddings in creating websites and to advertise to the public her intention to so discriminate. The Court will probably say that the Constitution generally permits the government to enforce laws prohibiting discrimination against activities that discriminate. If I have a business selling my fantastic vegan doughnuts and apple fritters, for example, the law can require me to sell them to people over the age of 70 even if I would prefer to sell them only to customers under that age. Likewise, the law can stop me from putting up a sign on my doughnut shop that says, “People under 70 welcome with i.d. proving their age.” I expect the Court to say, however, that web design involves speech in a fundamental way, beyond just having to talk with one’s customers in a manner that shows equal respect to different groups. The Court will, I believe, hold that enforcement of Colorado’s anti-discrimination law against the web designer violates the First Amendment.

[. . .]

If we were naïve, we might expect the following to happen in the wake of the Court’s expected decision in 303 Creative: web designers would have the right to turn away Catholics if the designers believed that Catholics engage in idol worship and are polytheists; businesses that help students write better college admission essays would be entitled to exclude all Christians because the businesses believe that too many Christians take spaces in college from other religious groups; a white supremacist meditation school could refuse to serve African Americans who want to learn to meditate; and public defenders would have the right to turn away a credibly accused rapist because representation requires speech that suggests belief in the innocence of the client. But note that none of these examples involves a speaker who wants to refuse to do business with same-sex couples or wants to announce the intention to refuse service to same-sex couples. For that reason, we might not have a slippery slope here after all. All we might have is (additional) evidence of the Court’s parochialism and hypocrisy.

New and forthcoming scholarly articles

Prof. Hadar Dancig-RosenbergProf. Hadar Dancig-Rosenberg

Millions of people around the world, most of them women, have been victims of revenge porn and have suffered intense pain and distress as a result. By 2021, almost all US states had criminalized revenge porn, defining it primarily as an infringement of privacy, as obscenity or as harassment. US courts have recently considered the constitutionality of criminalizing revenge porn in view of the potential conflict with freedom of speech. Contrary to the courts’ decisions, we argue that revenge porn is a sex offense and therefore justifies limiting the disseminator’s freedom of speech to a significant degree. Empirical evidence indicates that victims experience revenge porn as an erasure of their personal autonomy, one that radically disrupts their lives, alters their sense of self and identity, and dramatically affects their relationship with themselves and with others. Insofar as the rationale of freedom of speech relies on the protection of autonomy, the protection of the disseminator’s autonomy should not be at the expense of erasing the victim’s autonomy. Thus, our argument highlights the necessity for US state legislators to redefine the boundaries of the revenge porn offense accordingly.

Patrick WaltersPatrick Walters

Tracing back to the work of Isaiah Berlin and the debates of the Hutchins Commission, discussions of First Amendment theory have long been divided into interpretations of “negative” rights protecting speakers from interference and “positive” rights ensuring that the public has the right to a quality information system. This paper explores how a First Amendment framework consisting of these two approaches breaks down in a networked communication ecosystem in which the lines between communicator and audience are increasingly blurred. The analysis explores these questions amid ongoing debates over regulating platforms and the possibility of increased public intervention in the floundering news industry. The paper builds on previous scholarship that has deemed First Amendment theory “inadequate,” incorporating the work of Mike Ananny, Joshua Braun, Victor Pickard, Phillip Napoli, and others. It argues that the current information system is too complex for a simple binary approach to First Amendment theory. Instead, it calls for a reflexive approach that embraces how these perspectives interrelate, one that calls for protecting the rights of speakers, but doing so in a way that characterizes them as members of a larger collective of listeners whose interests must be served.

The New York Review essay on ‘Dangerous Ideas’

Dangerous Ideas: A Brief History of Censorship in the West cover
According to Eric Berkowitz’s Dangerous Ideas, the first public book burning in recorded history likely occurred in 430 BCE. Because the Sophist philosopher Protagoras questioned the existence of the gods, who had inflicted defeats in war and a devastating pestilence on Athens, his fellow citizens wanted to appease them by incinerating his sacrilegious writings.

Two hundred years after Protagoras’s works were devoured by flames, Chinese scrolls and wooden tablets suffered the same fate during the reign of Qin Shi Huang.

In Imperial Rome books were burned assiduously, including many Christian texts, and then pagan texts once the emperor Constantine converted to Christianity in the fourth century. A religion “rent by its own internal battles,” Berkowitz writes, required fiery measures to ensure orthodoxy and a unified church, which “became the model for speech suppression for centuries to come.” And so the pyres continued to blaze, through the Middle Ages and the Renaissance, the Reformation and the Counter-Reformation, the Enlightenment and the Industrial Age, and reaching, shamefully, into our own times.

Fire’s sheer destructiveness and capacity for spectacle make it dear to censors, as exemplified by two of the most infamous cases of book burning in recent centuries. The first comes from the United States, where in 1873 Anthony Comstock persuaded Congress to enact laws making it illegal to send lascivious materials through the mail. As a postal inspector, and with the help of mobs associated with his New York Society for the Suppression of Vice, Comstock claimed to have burned 160 tons of obscene literary material in the forty-year period following passage of the so-called Comstock laws, as well as illustrated playing cards, sex toys, marriage guides, and abortion and birth control devices.

Related

Socrates’ fateful hemlock. Henry VIII’s death decree for those who imagined his downfall. The 1836 “Gag Rule” banning slavery discussions in Congress. Britain’s early ban on films criticizing Hitler and Stalin. On today’s episode of So to Speak: The Free Speech Podcast, we are joined by lawyer and writer Eric Berkowitz to discuss his fascinating new book, “Dangerous Ideas: A Brief History of Censorship in the West, from the Ancients to Fake News.” Berkowitz’s “Dangerous Ideas” is a comprehensive and insightful adventure through time to examine censorship’s origins and trends. Also joining the conversation is FIRE President and CEO Greg Lukianoff.

Clay Calvert reviews ‘The Mind of the Censor & the Eye of the Beholder’

  • Clay Calvert, “Book Review,” Journalism & Mass Communication Quarterly (2021)

The Mind of the Censor and the Eye of the Beholder
This book is part biography, part history lesson, part psychological examination, and part First Amendment analysis. Anti-vice crusader Anthony Comstock receives the lion’s share of attention early in The Mind of the Censor, but others who followed in his censorial footsteps receive extended treatments as Comstock wannabes. For example, Brent Bozell, the founder and former president of the Parents Television. . . .

In analyzing the mindset of censors, Robert Corn-Revere’s [The Mind of the Censor & the Eye of the Beholder] breaks new ground by identifying in Chapter 4 ten rules moral entrepreneurs follow that, in his estimation, reflect Anthony Comstock’s playbook. These include exhibiting moral certainty, equating the opposition with love of vice, and denouncing and discrediting adversaries. Cleverly, Corn-Revere riffs on comedian Jeff Foxworthy’s signature “you might be a redneck if” formula. Corn-Revere twists it to identify 10 signs one might be a censor. He suggests, among other signals, that you might be a censor if “You Dismiss Support of Free Speech as Empty Dogma” (p. 252) and if “Your First Amendment Theories Perfectly Match Your Political Causes”. The Foxworthy formula leads Corn-Revere to propose a “Foxworthy Scale” featuring a “Censor-o- Meter”. On the spirit-of-liberty end of the scale, Corn-Revere positions former Supreme Court Justice Oliver Wendell Holmes, Jr., whereas Anthony Comstock anchors the opposite end, for “those exhibiting the most moral certitude, who are convinced of their own infallibility”

Related upcoming Zoom event 

The ABA Forum on Communications Law and Communications Lawyer are delighted to host a book discussion [of The Mind of the Censor and the Eye of the Beholder] with the author and other First Amendment luminaries. Specifically, Floyd Abrams, Mary Anne Franks, and Nadine Strossen will provide commentary. Joseph A. Tomain will moderate. We hope you will join us for this free, online event. It is sure to be a lively discussion on what seems to be a perennial issue and one that has been in the headlines lately.

 Register here.

Review of ‘The First Amendment Lives On’

[Stuart] Brotman (Communications Law and Practice), a law and journalism professor at the University of Tennessee, Knoxville, presents a series of enlightening interviews with “nominators, judges, and recipients” of the Hugh M. Hefner First Amendment Awards. Established in 1979, the awards “recogniz[e] individuals whose efforts help to protect and enhance First Amendment rights for all Americans.” Interview subjects—including former ACLU president Nadine Strossen; Burt Neuborne, founding legal director of the Brennan Center for Justice; and attorney Bob Corn-Revere, who represented CBS in the infamous Super Bowl “wardrobe malfunction” case—weigh in on [various] hot-button issues . . . Free speech advocates will find this a valuable resource.

Stuart Brotman, ed., “The First Amendment Lives On: Conversations Commemorating Hugh M. Hefner’s Legacy of Enduring Free Speech and Free Press Values” (2022)

So to Speak podcast: ‘The John Roberts Supreme Court’

“No chief justice in our history has had as much influence on the law of freedom of expression as John Roberts,” according to Ronald K.L. Collins and David L. Hudson Jr.

They are the authors of a new Brooklyn Law Review article, “The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005–2021.”

In this episode of “So to Speak: The Free Speech Podcast,” Collins and Hudson review 58 First Amendment rulings that have been issued since John Roberts became Chief Justice of the United States Supreme Court.

Collins is a First Amendment scholar, author, and editor of First Amendment News. Hudson is the Justice Robert H. Jackson legal fellow at FIRE and a professor at Belmont University College of Law.

Read a transcript of the interview.

YouTube: Yale Law School disruptions 

YouTube: Discussion of Jacob Mchangama’s new free speech book 

More in the news

2021-2022 SCOTUS term: Free expression & related cases

Cases decided 

Review granted

Pending petitions

Petition withdrawn 

Review denied

Last FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.