His originalism was selective . . . and essentially absent in his First Amendment free speech jurisprudence . . . .

Like a great majority of originalists, although he recognized the problems with applying originalism, in practice he seemed to practice law office history.

Scalia was not an historian . . . His originalist opinions were almost always one-dimensional . . .  — David Dorsen 

When it came to freedom of expression under the First Amendment, was Justice Antonin Scalia’s jurisprudence grounded in originalism? Did his First Amendment opinions in the following Roberts Court cases and elsewhere reflect the originalist jurisprudence he made famous?

During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

1. Davenport v. Washington Educ. Association (2007) (9-0)
2. United States v. Williams (2008) (7-2)
3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
4. Brown v. Entertainment Merchants Association (2011) (7-2)
5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

1. McCullen v. Coakley (2014) (9-0)
2. Doe v. Reed (2010) (8-1)
3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
4. Citizens United v. Federal Election Commission (2010) (5-4)

Justice Scalia & David Dorsen

⇒ How much did his originalist jurisprudence affect his thinking in those cases and others? Not much, says David Dorsen, author of The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Cambridge University Press, 2017).

In his latest book, Mr. Dorsen (who was a friend of the Justice) writes of Scalia’s “failure to look to the original understanding or meaning of many First Amendment issues ….” In a soon-to-be-posted interview I did with Mr. Dorsen for SCOTusblog, he added: “His originalist jurisprudence did have gaps. Perhaps the most important one was the freedom of speech (aside from pornography).”

Among other things, Dorsen argues that Scalia’s vote in Texas v. Johnson was inconsistent with his originalism: “No textual or historical evidence supports the contention that the society that adopted the First Amendment understood it to cover communicative activity like flag-burning. Symbolic expression, such as pictures and signs, were largely included, but that was it.”

“The distinction between content-based and content-neutral speech, the concepts of conduct as speech and fighting words, and the idea of conduct as protected speech are mid-to-late-twentieth century creations.”

Drawing on Professor Akhil Amar’s analysis, Dorsen maintains that Scalia’s opinion in R.A.V. v. City of St. Paul (1992) (cross burning) amounted to “‘an ambitious reconceptualization and synthesis of First Amendment doctrine.'”

Mr. Dorsen says more, much more, about Justice Scalia’s free-speech jurisprudence and originalism in his book, most of which highlights what Dorsen sees as the inconsistencies between the two.

→ Again, more will be said on Justice Scalia’s originalism and textualism later this week in my SCOTUSblog Q&A with David Dorsen.

Related 

1. Geoffrey Stone, Justice Scalia, Originalism and the First Amendment, Huffington Post, October 12, 2011
2. FAN 7:  Justice Scalia & the First Amendment, March 19, 2014
3. Gene Policinski, Justice Scalia: The 45 words — and original meaning — of the First Amendment, Newseum Institute, February 16, 2016
4. Steven Heyman, Justice Scalia and the Transformation of First Amendment Jurisprudence, SCOTUS Now, February 27, 2016
5. See Originalism and the First Amendment, Federalist Society Panel, Nov. 18, 2016 (Nadine Strossen, David Forte, & Bradford Clark)
6. David Lat, Justice Scalia, Originalism, Free Speech And The First Amendment, Above the Law, November 22, 2016

Newseum Event: The President & the Press: The First Amendment in the First 100 Days

Today the Newseum is hosting a half-day forum that will explore the Trump administration’s relationship with the press in the critical first months. The program will be held at the Newseum and will feature one-on-one conversations, panel discussions and individual presentations.

Participants, including White House Press Secretary Sean Spicer and Counselor to the President Kellyanne Conway, will explore pertinent challenges to the First Amendment, a free press and protecting the free flow of information in a divided nation.

→ Live video feed here.

Guests include:

• Jim Acosta, CNN
• Mike Allen, Co-founder and Executive Editor, Axios
• Bret Baier, Fox News
• Carrie Budoff Brown, POLITICO
• Kellyanne Conway, Counselor to the President
• David Fahrenthold, The Washington Post
• Ari Fleischer, former White House Press Secretary, George W. Bush
• David Kirkpatrick, journalist and author of “The Facebook Effect: The Inside Story of the Company That Is Connecting the World”
• Julie Pace, The Associated Press
• Jennifer Palmieri, former White House Communications Director, President Barack Obama
• Bob Schieffer, CBS News
• Sean Spicer, White House Press Secretary
• Charlie Spiering, Breitbart News
• Brian Stelter, CNN
• Greta Van Susteren, MSNBC
• Cecilia Vega, ABC News
• Glenn Thrush, The New York Times
• Kristen Welker, NBC News
• Michael Wolff, The Hollywood Reporter

Headline: “NRA Readies Next Attack Against The First Amendment”

This from Cydney Hargis over at Media Matters: “NRA To Launch Ads Against The ‘Anti-Freedom’ ‘Propaganda Machine’ New York Times.”

“The National Rifle Association’s news outlet NRATV announced a new “series of messages” against The New York Times that will air on the Fox News Channel beginning Monday. The NRA previewed the ad with the claim that the newspaper has ‘gone on the offensive to take away your liberties.'”

“On the April 7 edition of NRATV’s Stinchfield, host Grant Stinchfield called the Times ‘a liberal propaganda machine that is out of control,’ and claimed the newspaper has carried out an ‘assault on journalism.’ He then played a preview of a message featuring NRA’s CEO Wayne LaPierre in which LaPierre claimed the media has “weaponized the First Amendment against the Second,’ and that America “would have fallen long ago” had people placed their trust in the ‘failing American news media.'”

LoMonte to Leave SPLC & Join the Brechner Center

It was pleasure to work with Frank during his tenure as the leader at Student Press Law Center.  He was a great advocate and educator for the cause of free speech and access to information for student journalists.  He will be a tremendous asset for the Brechner Center.  Frank will bring great energy and leadership to the Center as it seeks to expand its mission. — David Horwitz

Frank LoMonte

Frank LoMonte, the executive director of the Student Press Law Center, will become the next executive director for the Brechner Center, University of Florida’s center for the freedom of information.  Lomonte will leave in early August.

The Brechner Center is a non-profit educational center. Although The Brechner Center does not provide legal advice, its executive director answers general questions about libel, privacy, prior restraints, freedom of information, Florida’s Government in the Sunshine Laws, access to courts and other First Amendment issues.

The Brechner Center answers queries about media law from journalists, attorneys, and other members of the public. The Center is prepared to explain issues relating to media law, provide educational and training materials, react to current developments, and offer speakers for meetings and conferences.

First Amendment Salon Video: Liptak Interviews Abrams

Floyd Abrams & Adam Liptak

→ New York Times Supreme Court correspondent Adam Liptak interviews Floyd Abrams at the Abrams Institute at Yale Law School.

→ Susan Gonzalez, Legal scholar speaks about why free speech matters, Yale News, April 6, 2017

Book Tour: Floyd Abrams Goes on the Road

Floyd Abrams may have to reduce the number of his billable hours given the tour for his latest book, The Soul of the First Amendment (Yale University Press, 2017).  Here are some of the venues at which Abrams will be speaking:

1. April 30: The Newseum, Washington, D.C.
2. May 1: Cato Institute, Washington, D.C.
3. May 8: National Constitution Center, Philadelphia
4. May 11: Legal Strategy Forum (hosted by Heritage Foundation), Colorado Springs, Co.
5. June 1: Carnegie Council on Ethics & International Affairs, New York, N.Y.
6. June 5: Temple Emanu-El Streicker Center, New York, N.Y.
7. June 13: The Aspen Institute, Washington, D.C.
8. August 28: Commonwealth Club of California, San Francisco, CA

→ Floyd Abrams ’59 Writes New Book on First Amendment, Yale Law School News, March 24, 2017

Forthcoming: Reporters Committee’s Freedom of the Press Awards Dinner

On May 23rd, the Reporters Committee for Freedom of the Press will host its 2017 Freedom of the Press Awards Dinner at the Pierre Hotel in New York City.

Honorees:

• Martin Baron, Executive Editor, Washington Post
• Kathleen Carroll, Former Senior Vice President and Executive Editor, Associated Press
• Paul Steiger, Executive Chairman, ProPublica
• The Media & First Amendment Practice of Davis Wright Tremaine LLP

• Special Presentation: Remembering Gwen Ifill
• Special Guest Speaker: David McCraw, Deputy General Counsel, New York Times

Robotica is Coming 

Coming next spring: Collins & Skover, Robotica: Speech & Artificial Intelligence (Cambridge University Press, 2018). The book (the main text of which is now complete) will include commentaries by Ryan Calo, Jane Bambauer, James Grimmelmann, Bruce Johnson, and Helen Norton along with a rejoinder by the authors. Below is what is likely to be the cover of our forthcoming book.

                       cover design by Alex Lubertozzi

The Slants to Perform at Flying Dog Brewery this Sunday

This Sunday at 6.00 p.m. The First Amendment Society will host the rock group whose case is waiting to be decided by the Supreme Court — yes, The Slants. They are the all-Asian American dance-rock band (music video) whose request to trademark their name was denied by the Patent and Trademark Office. The Portland-based band will perform “in a very casual setting” — the Flying Dog Brewery’s tasting room.

→ The case: Lee v. Tam (transcript of oral arguments)

New FIRE Podcasts

• Nico Perrino interviews Sam Gedge on Campaign Finanace Laws & the First Amendment
• Nico Perrinno Interviews Bob Corn-Revere on censorship: the ‘bastard child of technology’

FIRE Continues to Expand First Amendment Library 

New and expanded entries include:

• First Amendment Glossary
• First Amendment Overview Essays (expanded)
• Timeline: The History of Campaign Finance (expanded)

Forthcoming Book

• Jennifer Fronc, Monitoring the Movies: The Fight over Film Censorship in Early Twentieth-Century Urban America (University of Texas Press, November 15, 2017)

Abstract:

As movies took the country by storm in the early twentieth century, Americans argued fiercely about whether municipal or state authorities should step in to control what people could watch when they went to movie theaters, which seemed to be springing up on every corner. Many who opposed the governmental regulation of film conceded that some entity—boards populated by trusted civic leaders, for example—needed to safeguard the public good. The National Board of Review of Motion Pictures (NB), a civic group founded in New York City in 1909, emerged as a national cultural chaperon well suited to protect this emerging form of expression from state incursions.

Using the National Board’s extensive files, Monitoring the Movies offers the first full-length study of the NB and its campaign against motion-picture censorship. Jennifer Fronc traces the NB’s Progressive-era founding in New York; its evolving set of “standards” for directors, producers, municipal officers, and citizens; its “city plan,” which called on citizens to report screenings of condemned movies to local officials; and the spread of the NB’s influence into the urban South. Ultimately, Monitoring the Moviesshows how Americans grappled with the issues that arose alongside the powerful new medium of film: the extent of the right to produce and consume images and the proper scope of government control over what citizens can see and show.

New & Forthcoming Scholarly Articles

1. Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, Harvard Law Review (forthcoming 2017)
2. Zach Greenberg: Striking the Balance Between Academic Freedom and Transparency in Higher Education, Harvard Civil Rights-Civil Liberties Law Review (2017)
3. Danielle Keats Citron, Extremist Speech and Compelled Conformity,  Notre Dame Law Review (forthcoming 2017)
4. Leslie Kendrick, The ‘Speech’ in ‘Freedom of Speech‘, SSRN (March 23 2017)
5. Eric N. Lindblom, Micah L. Berman & James T. Thrasher, FDA-Required Tobacco Product Inserts & Onserts – And the First Amendment, Food & Drug Law Journal (2017)
6. Philip Lee, Student Protests and Academic Freedom in an Age of #Blacklivesmatter, Ohio Statet Law Journal (forthcoming 2017)
7. Jordan Alexander Lewis, The Future of Disparagement: How Trademark Law Suppresses Freedom of Speech, SSRN (April 9, 2017)
8. Kolby Paul Marchand, Free Speech and Signage After Reed v. Town of Gilbert: Signs of Change from the Bayou State, Southern University Law Review (forthcoming 2017)
9. Kyle Langvardt, A Model of First Amendment Decisionmaking at a Divided Court, SSRN (March 29, 2017)
10. Enrique Armijo, Government-Provided Internet Access, Infrastructures of Free Expression, and the Role of the State, in Mobile Technologies and Access to Knowledge (forthcoming 2018)
11. Andrea C. Armstrong, Racial Origins of Doctrines Limiting Prisoner Protest Speech, Howard Law Journal (2016)

New & Notable Blog Post

• Peter D. Schwinn, Third Circuit Rules for Officials in Retaliatory Speech and Petition Case, Constitutional Law Prof Blog, April 5, 2017

News, Editorial, Op-eds & Blog Posts

1. Peter Bonilla, ‘Unwanted Advances’ shows Laura Kipnis’ critiques of academic culture more relevant than ever, FIRE April 11, 2017
2. Adam Steinbaugh, At the University of Minnesota, reports of ‘bias’ often include political speech, FIRE, April 10, 2017
3. Eugene Volokh, Claremont McKenna statement on the shutting down of Heather Mac Donald’s talk, The Volokh Conspiracy, April 8, 2017

Today in First Amendment History: 100 Years Ago Today 

• April 12, 1917: Free Speech League, Others, Criticize Proposed Espionage Act: This from Today in Civil Liberties History:

Gilbert Roe of the Free Speech League

“One week after the U.S. declared war on Germany and entered the European war, free speech advocates on this day criticized the pending Espionage Act bill in hearings before the Senate Judiciary Committee.  Attorney Harry Weinberger, representing the Free speech League, said the bill would give the president ‘too much power.’ He and others strongly objected to the section of the bill that would punish causing ‘disaffection’ in the military. Attorney Gilbert Roe pointed out that if there were genuine problems with the war effort the section would prevent people from ‘pointing out the evils and correcting them.'”

“The Espionage Act became law on June 15, 1917, and as the critics had warned, became an instrument for suppressing dissent during the war. Most notably, Eugene V. Debs, leader of the Socialist Party, was convicted under the law for a speech in Canton, Ohio, on June 16, 1918, in which he carefully did not mention the current war. He was sentenced to 10 years in prison for the speech.”

“The Free Speech League, formed on April 7, 1911, was the first free speech/civil liberties organization in the U.S. Although it handled a number of important cases in the years before the war, it essentially stopped functioning during the war. It was supplanted by the National Civil Liberties Bureau, organized on July 2, 1917, which in turn was reorganized into the American Civil Liberties Union (ACLU) on January 19, 1920.”

→ Statement of Gilbert Roe, Representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”)

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Keefe v. Adams
2. Augsburg Confession
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

1. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Scott v. Georgia
2. Bondi v. Dana’s Railroad Supply
3. Bennie v. Munn
4. Flytenow v. Federal Aviation Administration
5. Armstrong v. Thompson
6. Wolfson v. Concannon
7. Dart v. Backpage.com
8. NCAA v. O’Bannon
9. Mech v. School Board of Palm Beach County
10. Williams v. Coalition for Secular Government 
11. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on April 13, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #148: April 10, 2017

Last Scheduled FAN, #146: Upcoming Conference: “Truth, Lies and the Constitution”

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

• Naomi Cahn & June Carbone, Introduction to About Abortion Symposium

•  David Pozen, The Abortion Closet

• Leslie Griffin, Talking About Abortion

• Helen Alvare, Ending the Silence

• Khiara Bridges, Abnormalizing Abortion

• David Cohen, About Abortion Providers

• Linda McClain, Will Focusing on Men’s Moral Calculus Make Abortion Less “about” Gender?

• Lisa Pruitt, Sanger’s Tour de Force on Abortion (with a Blind Spot for Geography)

• Rachel Rebouche, Life, Loss, Listening and Lennart Nilsson

Related

Professor Carol Sanger

• A Dialogue on Abortion: Madeline Hopper interviews Carol Sanger, Columbia Law School News, March 24, 2017

• Margaret Talbot, Why It’s Become so Hard to Get an Abortion, The New Yorker, April 3, 2017 (reviewing About Abortion)

• Carol Sanger, Norma McCorvey, Donald Trump and American women today: What it would mean to return to a pre-Roe United States, Daily News, February 24, 2017

• Carol Sanger, Talking About Abortion, Social & Legal Studies (vol. 25, #6, Dec. 30, 2016)

• Carol Sanger, Abortion Politics in the Age of Zika, US News & World Report, July 7, 2016

• Carol Sanger, Looking Your Fetus in the Eye: Mandatory Ultrasound and the Politics of Abortion, Dissent, November 10, 2009

Text of the First Amendment above door in Flying Dog Brewery

The beer was flowing / the crowd was roaring/ the free-speech lawyers were showing / as the First Amendment Society (Erin Weston, Executive Director) brought The Slants to the Flying Dog Brewery in Frederick, MD. for a performance during the band’s East Coast tour. Flying Dog’s CEO Jim Caruso introduced The Slants.

Recall, this is the Asian rock-dance band whose case (Lee v. Tam) was argued before the Court on January 18, 2017. The issue is whether the disparagement provision of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

The band, the amicus lawyer (Ilya Shapiro) & the brewer (Jim Caruso)

The Slants were in fine fighting form as they filtered their message through melodic modes mixed with razor-cut messages in Fight Back, one of the songs from their latest EP — The Band Who Must not be Named (In Music We Trust Records, 2017).

The Portland, Oregon synth-pop group melodiously veered through such free-speech anthems as their From the Heart:

Sorry if our note’s too sharp
Sorry if our voice’s too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

lead singer Ken Shima

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna get in our way

There’s no room
For your backwards feelings
And backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
Know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

First Amendment guys Bob Corn-Revere & Ilya Shapiro

So sorry if you take offense
But silence will not make make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backwards feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle 

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

Dinner – Location TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era,  the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

• Floyd Abrams
• Emily Bell
• Mona Bicket
• Vince Blasi
• Sarah Cleveland
• Heather Gerken
• Tom Ginsburg
• Jameel Jaffer
• Larry Lessig
• Catherine MacKinnon
• Robert Post
• Albie Sachs
• Fred Schauer
• David Strauss
• Cass Sunstein
• Laura Weinrig

Owen Fiss on Harry Kalven

Harry Kalven (credit: Jac Stafford, Univ. of Chicago Law School)

Yale Law Professor Owen Fiss has a new book out entitled Pillars of Justice: Lawyers and the Liberal Tradition (Harvard University Press, 2017). The book consists of a series of engaging essays on some of the leading figures in contemporary law, including two from abroad (Aharon Barak  and Carlos Nino). See outline of book below.

Those interested in the First Amendment will appreciate the essay on Harry Kalven. Here are a few passages from that essay:

• “Harry chuckled when he learned that ‘the Harvards’ — Professors Paul Freund, Arthur Sutherland, Mark De Wolfe Howe, and Ernest Brown — edited [‘uninhibited, robust and wide-open’] out of Brennan’s opinion when it was reprinted in their casebook.”

• “In the 1950s as a very young professor, Kalven became an outspoken critic of the anti-Communist crusade led by Senator Joseph McCarthy.  In all of [Kalven’s] endeavors he never saw the First Amendment simply as an object of scholarly effort; to him it was an overarching ideal of personal and governmental behavior. Indeed, he often spoke of the First Amendment’s ‘charisma.””

• “Justice Brennan was thoroughly familiar with Kalven’s work and often discussed it with me and Peter Strauss, his other law clerk. Now and then the Justice even mused on the proximity of his and Kalven’s views, not just on the significance of New York Times Co. v. Sullivan, but also on a range of free speech issues, from the regulation of pornography to the treatment of civil rights activists and their lawyers.”

Part I: The Struggle for Civil Rights [with essays on:]

1. Thurgood Marshall
2. William Brennan
3. Joan Doar
4. Burke Marshall

Part II: Legal Education and the Culture of Liberalism [with essays on:]

1. Harry Kalven
2. Eugene Rostow
3. Arthur Leff
4. Catherine MacKinnon
5. Joseph Goldstein

Part III:  The Fate of the Law  [with essays on:]

1. Carlos Nino
2. Robert Cover
3. Morton Horowitz
4. Aharon Barak

Podcast — Heckler’s Veto: Interview with Heather MacDonald 

→ Nico Perrino Interview, The ‘heckler’s veto’ strikes Heather Mac Donald, FIRE, So to Speak, April 18, 2017

Center to Protect Free Speech

The American Legislative Exchange Council has lanuched the Center to Protect Free Speech. Here is some information on the Center.

The purpose of the Center to Protect Free Speech is to educate legislators and concerned citizens regarding the importance of free speech; promote policies that ensure the ability for all to speak freely; and equip the public with the resources necessary to preserve and protect the free speech rights of all people.

The Center  focuses on three key areas: Campus speech, donor privacy, and commercial speech.

I. Campus Speech – Freedom of speech and inquiry are crucial in higher education. Universities exist to educate students and pursue knowledge. As a “marketplace of ideas,” the university offers a forum for ideas to compete. This intellectual competition produces a level of academic rigor that is impossible to produce without freedom of speech for both students and professors. The Center will focus on three primary issues in higher education; two relating to professors/faculty and one related specifically to student speech on campus:

Academic Freedom – the right of the professor/faculty to determine the content of their instruction without fear of government intrusion, while at the same time ensure material is germane to the subject of the class.

Freedom to Research—Professors also need protection as they pursue research that may be unpopular or controversial. A common intimidation tactic of political activists is to submit Freedom Of Information Act (FOIA) requests for professors’ private correspondence.

Student Speech – One of the main pillars of a higher education is to expose oneself to the “free market of ideas.” In order to do this, students must be exposed to new ideas and feel free to challenge agreed upon “truths.”

II. Donor Privacy –the first amendment’s preservation of free speech and assembly encourages open public debate, which is essential to the proper function of American democracy; violating the privacy of individuals who choose to donate to nonprofit 501(c)(3)-designated organizations has the potential to chill free speech for fear of retribution and stifle subsequent participation in the political process.

III. Commercial Speech – It is imperative to empower consumers by protecting their right to receive truthful commercial information, and the rights of businesses to engage in the free exchange of such truthful information.

Those who oversee the Center are:

• Sen. Leah Vukmir (Wisconsin Senate Public Chair )
• Michael Bowman (ALEC Vice President)
• Shelby Emmett (ALEC Director)
• Daniel Turner (ALEC Staff)

Headline: The First Amendment Gave This Neo-Nazi The Right To Be Vile — But Then He Went Too Far

The man behind the internet’s most popular neo-Nazi website, the Daily Stormer, is being sued for waging a harassment campaign against a Jewish woman in Montana. Legal experts believe he’ll have a hard time defending his actions.

Andrew Anglin

This from Mike Hayes writing in BuzzFeed:

“The right to free speech protected under the U.S. Constitution gives Americans broad allowances to say extremely bigoted, mean-spirited and disgusting things online about other people. Perhaps nobody understood just how broad hose allowances were than leading neo-Nazi blogger Andrew Anglin — who refers to Jewish people on his site as “kikes,” black people as “niggers,” gay people — or those he perceives as gay — as “faggots,” and has a whole section called The Jewish Problem.”

“Last last year, the self-proclaimed white supremacist decided to take his hateful rhetoric a step further. On December 16, Anglin authored a post on the Daily Stormer goading his readers to engage in a “troll storm.” The target: a Jewish realtor in Montana named Tanya Gersh, who Anglin was convinced was “extorting” Sherry Spencer, the mother of leading white supremacist Richard Spencer.”

“In the post, titled ‘Jews Targeting Richard Spencer’s Mother for Harassment and Extortion – TAKE ACTION!,’ Anglin writes, “Let’s Hit Em Up. Are y’all ready for an old fashioned Troll Storm? Because AYO – it’s time, fam.” The post contains a substantial amount of contact information for Gersh — who he calls a “whore” — her husband, and one of her sons, a 12-year-old who Anglin calls “a scamming kike” and ‘creepy little faggot.'”

“Anglin asks his readers to contact the Gershes and ‘make your opinions known.’ He asks them to call them, email them, tweet them, or ‘if you’re in the area, maybe you should stop by and tell her in person what you think of her actions.’ He explicitly writes that no one should do anything violent, but adds, ‘It is very important that we make them feel the kind of pressure they are making us feel.'”

“And ‘hit em up’ his followers did, which legal experts said could land Anglin in trouble in court.”

“In a lawsuit filed this week, Gersh alleges more than 700 instances of harassment directed at her and her family in connection with the “troll storm” orchestrated by Anglin. These include emails to her reading, ‘Ratfaced criminals who play with fire tend to get thrown in the oven,’ and ‘This is the goylash. You remember the last goylash, don’t you Tanya? Merry Christmas, you Christ killing Jew,’ and one that simply reads ‘Death to Tanya’ repeated in the message about 100 times. . . .”

Las Vegas corrections officer challenges department’s social media policy

Marc J. Randazza, Plaintiff’s lawyer

The case is Sabatini v. Las Vegas Metropolitan Police Department (D. Ct., Nevada, 2017). In his complaint for declaratory and injunctive relief and damages, the Plaintiff John Sabatini claims that the Las Vegas Metropolitan Police Department violated his First Amendment right to freedom of expression, as well as his due process rights when it terminated his employment based on an unconstitutionally vague social media policy.

As reported in the Las Vegas Review-Journal: “Clark County Detention Center officer John Sabatini was fired last year after the department’s internal affairs division received an anonymous complaint about his Facebook posts. He was rehired several months later after arbitration proceedings.But the employment grievance victory was not enough for Sabatini. [H]e sued the police department . . . .”

In his complaint, the plaintiff mainatins that this “is a case about the government terminating one of its employees because it disapproved of the content of his speech, and using an unconstitutionally vague policy regulating speech that affords the government unlimited discretion to punish employees when they feel like it.”

→ The Plaintiff is being represnted by Marc Randazza, who is an is an officer of the First Amendment Lawyers’ Association.

Geoffrey Stone: “Richard Spencer’s Right to Speak at Auburn”

Richard Spencer

This from Professor Geoffrey Stone’s op-ed in the New York Times: “Last week, Richard B. Spencer, a white nationalist and one of the leaders of America’s so-called alt-right movement, announced that he would be giving a speech on the campus of Auburn University in Alabama. Auburn, a public university, has a policy of permitting anyone who wants to rent meeting space to do so. . . .  Several days later, though, Auburn changed its tune. ‘In consultation with law enforcement,’ the university announced that it had decided to cancel the event because of ‘credible evidence that it will jeopardize the safety of students, faculty, staff and visitors.'”

“. . . . Auburn may defend its decision on the grounds that, unlike other speakers, Mr. Spencer’s speech could generate a violent response. Thus, the university argues, there is a reasonable justification to forbid his speech, even though other people’s are routinely allowed.”

“This debate has long interested the Supreme Court, which came to the conclusion in the 1960s that threats of violence cannot, except in truly extraordinary circumstances, justify government action that silences a speaker. Rather, the court has held that the government’s constitutional obligation in such circumstances is to take all reasonable steps to protect the rights of the speaker. . . .”

“Auburn had it right the first time.”

→ Note: As he notes in his op-ed, as a young law professor Stone assisted the ACLU in the case of National Socialist Party of America v. Village of Skokie

New & Notable Blog Posts 

1. Eugene Volokh, N.Y. judge: ‘The Daily News shall remove plaintiff [Eric] Lerner’s name and photograph from the Article’, The Volokh Conspiracy, April 18, 2017
2. Steven D. Schwinn, Court Gives No First Amendment Protection to Competition Art at U.S. Capitol, Constitutional Law Prof Blog, April 14, 2017
3. Erica Goldberg, Masterpiece Cakeshop, the Pence Policy, and Hard Questions about Religious Liberty Versus Discrimination, In a Crowded Theater, April 4, 2017

Roger Baldwin

Today in First Amendment History 

→ April 19, 1929: Supt. of NYC Schools Bars Talk on “Free Speech” by ACLU Head Roger Baldwin

This from Today in Civil Liberties History:

“The Superintendent of the New York City schools barred a talk on “free speech” by ACLU Director Roger Baldwin. The incident was one of several in the 1920s in which school officials barred talks in schools by the ACLU. Self-appointed patriot groups, meanwhile, pressured school officials to prevent discussions of ideas they regarded as “radical.”For the long battle between the ACLU and the New York City school system over freedom of speech, see May 21, 1926 (when the ACLU was banned from the schools); March 19, 1928 (when the school superintendent denounced the ACLU); and November 27, 1928 (when the ACLU won the right to speak in the schools).”

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Augsburg Confession
2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

1. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Keefe v. Adams
2. Scott v. Georgia
3. Bondi v. Dana’s Railroad Supply
4. Bennie v. Munn
5. Flytenow v. Federal Aviation Administration
6. Armstrong v. Thompson
7. Wolfson v. Concannon
8. Dart v. Backpage.com
9. NCAA v. O’Bannon
10. Mech v. School Board of Palm Beach County
11. Williams v. Coalition for Secular Government 
12. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on April 21, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #149: April 26, 2017

Last Scheduled FAN, #147: Was Justice Scalia a First Amendment free-speech originalist?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

→ Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First Amendment, National Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

→ Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

→ R. Kent Westberry is counsel for Donald Trump, both as President and individually.

Justice Department targets Assange . . . & other leakers 

I love WikiLeaks — candidate Donald Trump (Oct. 10, 2016)

“We are going to step up our effort and already are stepping up our efforts on all leaks,” Sessions said at a news conference on Thursday in response to a reporter’s question about a US priority to arrest Assange.

• “Even though Trump once praised WikiLeaks founder Julian Assange (and, before that, suggested that he deserved the death penalty), the administration may now be turning on Assange, who by dumping thousands of hacked emails, may have helped Trump become president in the first place.” (Source: Salon)
• “Attorney General Jeff Sessions said at a news conference on Thursday that Assange’s arrest is a ‘priority’ of the administration.” (Source: CNN)
• “Prosecutors are believed to be preparing or considering charges against WikiLeaks and its founder, according to US media reports, and Jeff Sessions said officials had ‘already begun to step up our efforts’ to crack down on leaks. (Source: The Independent)
• “CIA Director Mike Pompeo said last week, ‘It’s time to call out WikiLeaks for what it really is: a non-state hostile intelligence service often abetted by state actors like Russia.'” (Source: Fox News)

And as for those other leakers — this from Attorney General Sessions:

“This is a matter that’s gone beyond anything I’m aware of. We have professionals that have been in the security business of the United States for many years that are shocked by the number of leaks and some of them are quite serious. Whenever a case can be made, we will seek to put some people in jail.

Related

• Jonathan Adler, Prosecuting Assange under Espionage Act would set dangerous precedent, The Volokh Conspiracy, April 24, 2017
• Charles P. Pierce, Jeff Sessions, Julian Assange, and the First Amendment, Esquire, April 21, 2017

Headline: “Floyd Abrams sees Trump’s anti-media tweets as double-edged swords”

This from Jim Rutenberg’s story in the New York Times:

Floyd Abrams

On the Trump Administration: Floyd Abrams “is not forlorn about the prospects for free speech under the new administration. But he isn’t sanguine, either, especially after the news about a potential WikiLeaks prosecution. In his book, Mr. Abrams harshly criticizes WikiLeaks as irresponsible, but he said criminal charges against the group would be ‘a perilous step in terms of First Amendment protection.’ In other words: Be afraid, at least a little afraid.”

” . . . . ‘My concerns on the Trump level are more in two areas,’ he said. ‘One, the potential use of the Espionage Act against journalists reporting on national security-related matters, and the other is leak investigations in which the journalists are called to testify.'”

Reporters and Leaks: “if a reporter is swept up in a leak investigation over an article the administration doesn’t like, his or her lawyers would just have to log on to Twitter and search @RealDonaldTrump to find support for an argument that the government was misusing the legal system to punish journalists. ‘Enemy of the people’ would be on page one’ of any defense, Mr. Abrams said, referring to Mr. Trump’s post describing reporters as such.”

On the Gawker case: “. . . I wondered about Gawker, which a Florida jury hit with a $140 million verdict in an invasion-of-privacy lawsuit last year. Without the financial wherewithal to fight on through the appeals process, its owners went into bankruptcy and sold to Univision. But Mr. Abrams said, ‘I think Gawker would have won if it had had a chance to go higher.’ Juries, he said, have always shown a willingness to punish journalists — who are down there with lawyers in the public esteem rankings — just as appellate courts are often willing to reverse those juries.”

Cato to host Floyd Abrams event

Location: Hayek Auditorium, Cato Institute, Washington, D.C.

Cato’s Roger Pilon

“Featuring the author Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel LLP; with comments by Ronald Collins, Harold S. Shefelman Scholar, University of Washington School of Law and Author, “First Amendment News,” Concurring Opinions blog; and Ilya Shapiro, Editor-in-Chief, Cato Supreme Court Review, Cato Institute; moderated by Roger Pilon, Director, Center for Constitutional Studies, Cato Institute.”

Game maker files First Amendment lawsuit

The National Law Review reports that  “Candy Lab AR, makers of the augmented reality poker game Texas Rope ‘Em, sued Milwaukee County, Wisconsin, over an ordinance alleged to be violating the First Amendment. The ordinance states: ‘Permits shall be required before any company may introduce a location-based augmented reality game into the Parks . . . .'”

“The complaint alleges, in part, that: this restriction impinges on Candy Lab AR’s right to free speech by regulating Candy Lab AR’s right to publish its video games that make use of the augmented reality medium. It also claims that the ordinance is a prior restraint on Candy Lab AR’s speech, impermissibly restricts Candy Lab AR’s speech because of its content, and is unconstitutionally vague . . . .”

Solomon speaks at pre-launch History Book Festival event 

Stephen Solomon (left) & Mike DiPaolo (right)

For its fourth pre-launch event, the History Book Festival hosted an interview with Professor Stephen Solomon at the Lewes Public Library. Michael DiPaolo, executive director of the Lewes Historical Society, conducted the interview, the focus of which was on Solomon’s Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech. Solomon and DiPaolo spoke to a full house this past Friday.

This was the fourth pre-launch event hosted by the History Book Festival. Previous speakers were:

• James Swanson (Manhunt: The 12-Days Chase for Lincoln’s Killer)
• Perter Cozzens (The Earth Is Weeping: The Epic Story of the Indian Wars for the American West)
• Steven Pressman (50 Children: One Ordinary American Couple’s Extraordinary Rescue Mission into the Heart of Nazi Germany), and
• Andrea Mays (The Millionaire and the Bard: Henry Folger’s Obsessive Hunt for Shakespeare’s First Folio)

The History Book Festival — the first one of its kind — officially launches in Lewes, Delaware on Oct. 6th and 7th.  Some of those who have already agreed to participate include:

• Geoffrey Stone (Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century) interviewed by Judge Thomas Ambro
• Kermit Roosevelt (Allegiance: A Novel)
• Sally Mott Freeman (The Jersey Brothers: A Missing Naval Officer in the Pacific and His Family’s Quest to Bring Him Home)
• Margaret E. Wagner (America and the Great War), and 
• Jann Haynes Gilmore (Olive Rush: Finding Her Place in the Santa Fe Art Colony)

→ The Festival is co-directed by Ronald Collins and Jen Mason.

Justice Hans Linde to be Honored

Justice Hans Linde (ret)

Oregon Supreme Court Justice Hans Linde (ret.)  has been named the 2017 Jonathan U. Newman Legal Citizen of the Year. The Classroom Law Project is hosting a dinner in his honor tomorrow at the Sentinel Hotel in downtown Portland.

Justice Linde, who is 93, is best known as the “intellectual godfather” of the “new judicial federalism.” Linde is also widely regarded for his free-speech opinions and scholarly articles, which include:

• State v. Robertson (Or., 1982)
• City of Portland v. Tidyman (1988)
• “Clear and Present Danger Reexamined: Dissonance in the Brandenburg Concerto,” Stanford Law Review (1970)
• “Fair Trials & Press Freedom — Two Rights Against the State,” Willamette Law Review (1977)
• “Courts and Censorship,” Minnesota Law Review (1981)
• “The Press and Rights,” New York Times, April 27, 1979

→ See also, Rex Armstrong, “Free Speech Fundamentalism – Justice Linde’s Lasting Legacy,” 70 Or. L. Rev. 855 (1991)

New & Forthcoming Books

1. David van Mill, Free Speech and the State: An Unprincipled Approach (Palgrave Macmillan, February 3, 2017)
2. Kevin Saunders, Free Expression and Democracy: A Comparative Analysis (Cambridge University Press, March 21, 2017)
3. Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, March 27, 2017)
4. Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (Oxford University, April 4, 2017)
5. Robert Spencer, The Complete Infidel’s Guide to Free Speech (and Its Enemies) (Regnery Publishing, July 24, 2017)
6. Martin Gitlin, When Is Free Speech Hate Speech? (Greenhaven Press, August 15, 2017)
7. Zeke Jarvis, Silenced in the Library: Banned Books in America (Greenwood Publishing Group, August 31, 2017)
8. Mickey Huff & Andy Lee Roth, editors, Censored 2018: Press Freedoms in a “Post-Truth” Society-The Top Censored Stories and Media Analysis of 2016-2017 (Seven Stories Press, October 3, 2017)
9. Richard Pifer, The Great War Comes to Wisconsin: Sacrifice, Patriotism, and Free Speech in a Time of Crisis (Wisconsin Historical Society Press, October 31, 2017)
10. Gavan Titley & Des Freedman, et al, editors, After Charlie Hebdo: Politics, Media and Free Speech (Zed Books, November 15, 2017)

New & Forthcoming Scholarly Articles 

1. Rachel Elizabeth VanLandingham, Jailing the Twitter Bird: Social Media, Material Support to Terrorism, and Muzzling the Modern Press, Cardozo Law Review (forthcoming, 2017)
2. Blake Anthong Klinkner, Do You Have a First Amendment Right to Social Media?, The Wyoming Lawyer (2017)
3.  Julie Seaman & David Sloan Wilson, #FreeSpeech, Arizona State Law Journal (2017)

Notable Blog Posts

• Ruthann Robson, Ninth Circuit Upholds Berkeley Ordinance Requiring Cell Phone Retail Disclosures, Constitutional Law Prof Blog, April 21, 2017 (“One measure of the importance of the issue is the attorneys who argued CTIA in the Ninth Circuit: Theodore Olsen for the trade association of CTIA and Lawrence Lessig for the City of Berkeley.  The Ninth Circuit’s majority opinion is careful and well-reasoned, but as the divided panel evinces, there are fundamental disputes about warning labels.”)

Today & Tomorrow in First Amendment History 

April 25, 1906:  William J. Brennan, Jr. born in Newark, New Jersey, the second of eight children. His parents, William and Agnes (McDermott) Brennan, were Irish immigrants.

April 26, 1968: “Fuck the Draft” — Robert Paul Cohen Arrested

This from Today in Civil Liberties History: “To protest the Vietnam War, Robert Paul Cohen walked through the Los Angeles County Court House on this day with the words, “FUCK THE DRAFT. STOP THE WAR,” on the back of his jacket. He was arrested and later convicted of disturbing the peace, but the Supreme Court reversed his conviction in Cohen v. California on June 7, 1971.

Prof. Mel Nimmer represented Cohen in the Supreme Court

Justice John Marshall Harlan, II wrote for the majority, while Justice Harry Blackman wrote a dissent in which Chief Justice Warren Burger and Hugo Black joined. Here is an excerpt from Harlan’s opinion:

“Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

Note: Anthony G. Amsterdam filed an amicus brief for the American Civil Liberties Union of Northern California.

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Alabama Democratic Conference v. Marshall
2. Augsburg Confession
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

1. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Keefe v. Adams
2. Scott v. Georgia
3. Bondi v. Dana’s Railroad Supply
4. Bennie v. Munn
5. Flytenow v. Federal Aviation Administration
6. Armstrong v. Thompson
7. Wolfson v. Concannon
8. Dart v. Backpage.com
9. NCAA v. O’Bannon
10. Mech v. School Board of Palm Beach County
11. Williams v. Coalition for Secular Government 
12. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on April 28, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #150: May 3 2017

Last Scheduled FAN, #148: Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

The Bridges opinion was “a judicial Declaration of Independence for the First Amendment, freeing it from English law.” — Benno C. Schmidt

Harry Bridges

One sign of a good book is its ability to engage readers, to pique curiosity, and to urge one to return anew to something largely known but mostly forgotten. By that measure, Floyd Abrams’ latest book (The Soul of the First Amendment) is a valuable book.

In reading this so-called “modest essay” — Abrams tags it “ruminations about certain aspects of American constitutional law” — I was drawn back to a Bridges v. California (1941), the contentpt of court case involving the militant Harry Bridges, the then conservative Los Angeles Times, and their unrestrained comments on a then pending case.

Abrams devotes the better part of a concise chapter to this First Amendment majority opinion authored by Justice Hugo Black. The Court divided 5-4 with Justice Felix Frankfurter registering a stinging dissent.

Bridges is “a seminal but too-little recalled First Amendment case” writes Abrams.  I agree. Many con-law casebooks do not even cite the case anymore.

After reading the Bridges chapter, which is rich with important observations and comments, I went back and did some research on the case. Here is what I found — several revealing facts nearly lost to time.

Justice Douglas Edmonds

The Importance of a Forgotten State-Court Dissent: Does the name Douglas Lyman Edmonds (1887-1962) ring a bell? There is no reason it should except for the fact that he authored a powerful lone dissent when the California Supreme Court ruled on the  case in 1939.

• Edmonds’ dissent drew in part on a 1928 Columbia Law Review article entitled “Contempt by Publication in the United States.” It was written by Walter Nelles (co-founder of the ACLU and co-counsel in Gitlow v. New York and Whitney v. California) and Carol Weiss King (one of Bridges’ lawyers and one of the founders of the National Lawyers Guild).
• After discussing British constitutional history, Edmonds wrote: “The concept of freedom of the press, stated by Blackstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that ‘the liberty of the press … consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’ . . . is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920), 8 et seq.”
• And then following more extended discussions of federal and state laws (decisional and statutory laws), Edmonds declared: “The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court.”
• “The rights of freedom of speech and of the press,” Edmonds added, “have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their Constitution ‘that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.’ For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.”
• He closed his dissent with these words: “When free speech is fettered, liberty is a meaningless word.”

More, much more, can be said about this remarkable dissent, but that is a task for another day.

A.L. Wirin

The Importance of the Counsel in the Case: Turning back the pages of history reminds us that two rather important ACLU lawyers represented Bridges in the U.S. Supreme Court:

• Osmond K. Fraenkel argued the case. Earlier, he represented the defendants in the Sacco-Vanzetti case and was one of the attorneys for Scottsboro boys. Fraenkel argued 26 cases  in the Supreme Court.  He was the lead counsel for the petitioners in  De Jonge v. Oregon, Kunz v. New York and Schneider v. New Jersey. [Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (2009), p. 200]
• A. L. Wirin was with Fraenkel on the Bridges brief. Wirin was the first full‐time lawyer for the ACLU and served as chief counsel of the ACLU of Southern California for four decades. As Sam Walker noted: Wirin “particularly distinguished himself during the Japanese-American internment when he and the ACLU affiliate sought an aggressive challenge to the government’s catastrophic program.” Wirin was counsel for the petitioner in Korematsu v. United States

→ Here is an excerpt from the Fraenkel-Wirin brief, a passage that apparently got the attention of Justice Black when he authored his majority opinion:

“The ‘Inherent Tendency’ and ‘Reasonable Tendency’ rule applied by the California Courts to publications pertaining to issues pending in the courts are too vague and indefinite… They offend due process of law and deprive the petitioner of freedom of speech and freedom of the press… Only the application of the ‘clear and present danger’ or the ‘actual obstruction’ principle to publications alleged to be in contempt of court will reconcile the independence of the judiciary with freedom of the press.”

The Importance of Fate: The Bridges case was first argued on Friday October 18th and on Monday October 21st of 1940. At the time of the conference, Chief Justice Charles Evans Hughes found it to be an easy case. In conference he was straightforward: “The facts here transcend the limits of reasonable discussion and I think [the lower court] should be affirmed.” (Roger K. Newman, Hugo Black: A Biography (1994), p. 290).  With that he assigned the majority opinion to Justice Frankfurter with Black, Reed and Douglas in dissent.  But then Fate changed things.

Anthony Lewis

As Anthony Lewis noted, on February 1, 1941, Justice James McReynolds retired.  “That left a five-to-three majority for affirmance.” And then Justice Frank Murphy jumped ship and joined with the dissenters.  That left the vote at four-to-four.  “At the end of the term,” Lewis added, “Chief Justice Hughes retired, leaving only three votes to affirm the contempt convictions.” [Anthony Lewis, “Justice Black and the First Amendment,” in Tony Freyer, Justice Hugo Black and Modern America (1990), pp. 237-252.]

And then two new members joined the Court: Justices James Byrnes and Robert Jackson.  Byrnes voted to affirm, Jackson to reverse. The result: a new majority with Black writing for the Court and Frankfurter dissenting.

The Importance of the Date: The 5-4 ruling in Bridges v. California came down on December 8, 1941 — the day after the attack on Pearl Harbor. That was also the day when President Roosevelt spoke to Congress at noon to request a declaration of war from the House.

Meanwhile, at the Court there was great division. On the one hand, Justice Black declared that “[h]istory affords no support for the contention” that speech could be abridged merely because it was directed at a judge sitting in a case. On the other hand, Justice Frankfurter was adamant that “[o]ur whole history repels the view [that a] newspaper to attempt to overawe a judge in a matter immediately pending before him.”

While war was afoot in the nation, freedom was being debated in the nation’s highest Court.

The Importance of Four Unpublished Sentences: In a draft of his original dissent, Justice Black penned the following words, which never appeared in his majority opinion:

 First in the catalogue of human liberties essential to the life and growth of a government of, for, and by the people are those liberties written into the First Amendment to our Constitution. They are the pillars upon which popular government rests and without which a government of free men cannot survive. History persuades me that the moving forces which brought about the creation of the safeguards contained in the other sections of our Bill of Rights sprang from a resolute determination to place the liberties defined in the First Amendment in an area wholly safe and secure against any invasion — even by government. [Howard Ball, Hugo L. Black: A Cold Steel Warrior (1996), p. 191]

And then there was this line: Narrow abridgments have a way of broadening themselves. [Newman, supra, at p. 290, n. *]

Hugo Black (1937: credit: Harris & Ewing)

The Importance of the Bridges Test: Justice Black harbored no fondness for Holmes’ clear-and-present danger test. Still, in Bridges he did give it a judicial nod of sorts, but then pointed beyond it:

What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

The Importance of  Three Precedents: As Anthony Lewis saw it, Bridges was part of a trilogy of First Amendment cases that changed the conceptual landscape of American free-speech law. The other two cases were Near v. Minnesota and New York Times Co. v. Sullivan. Here is how Lewis put it:

• What Near did for our law of prior restraints from English tradition, and Bridges for our law of contempt, the 1964 decision in . . . Sullivan did for libel.

What is also key to these three rulings, and what also links them together, is that unlike earlier First Amendment cases that “focused on the harm speech could do,” Near, Bridges and Sullivan focused instead on “the good it could do.”

• “Chief Justice Hughes found affirmative reasons for a free press.”
• “Justice Brennan spoke of our ‘profound 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 then there was Justice Black: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”

* * * * *

Justice Louis Brandeis

As Frankfurter told it, Justice Brandeis allegedly agreed with him and disfavored Black’s view in Bridges: “Black and Co.,” he had Brandeis saying, “have gone mad on free speech.” [H.N. Hirsch, The Enigma of Felix Frankfurter (1981), p. 158] Professor Hirsch noted that it was not “possible to verify this story.” [Id. at 240, n. 115].

True or not, one thing was certain: “Bridges cut deeply into Frankfurter’s sense of well-being.” [Id. at p. 158] And perhaps that explains FF’s need to find a purported ally in Brandeis.

Lewes was understandably skeptical: “I should not leave unquestioned any assumption that Justice Brandeis would in the end have disagreed with the Black view in Bridges if he had still been on the Court. No doubt fair trial was an important value for him, and he might well have been reluctant to limit the power of judges to punish comments threatening that fairness. But it is also true that Brandeis considered freedom of speech a positive good, and he made the case for that belief with compelling eloquence.” [Lewes, supra, at p. 245]

The battle between Black and Frankfurter continued for decades thereafter. Ultimately, however, the spirit of Brandeis’ free-speech jurisprudence pointed more towards Black’s expansive views than towards Frankfurter’s cramped ones. Perhaps that explains why Mr. Abrams began his book with an epigraph quote from Justice Black:

The very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.  

And to think that much of that heroic spirit traced back to Bridges . .  . first in Justice Edmonds’s dissent, then in the work done by Fraenkel  and Wirin, followed by the Black dissent that became a majority opinion, and ultimately capped by Tony Lewis’s revealing explanation of it all.

Throughout our history, the ACLU has stood up for freedom of speech and the right to dissent.  From providing know-your-rights materials, to sending trained legal officers to protests, to bringing critical lawsuits defending free speech, the ACLU is on the ground across the country ensuring that people’s voices can be heard. — 2017 Workplan

After a two year hiatus, the American Civil Liberties Union has reaffirmed its long-standing commitment to free-speech rights, this in its 2017 workplan. The group’s latest workplan contains a section on safeguarding free-speech rights. The 2017 “ACLU Strategy for Defending the Constitution” includes a segment entitled “Standing Up for Free Speech and Protestor Rights.” This portion of the work plan was part of an eight-page mailer sent out to ACLU members. The 2016 and 2015 workplans, by contrast, omitted any mention of protecting First Amendment free-expression rights.

“From Standing Rock to the Women’s March, from airport protests of the Muslim ban to Black Lives Matter marches across the country,” the workplan states, “we are experiencing historic levels of protest.  The whole point of lifting up your voice is making sure your elected officials hear you.”

Anthony Romero, ACLU Executive Director

“The response to these powerful displays of democracy in action? Legislators in at least 15 states have proposed new laws to criminalize and penalize protest activities. Some of these have been dressed up as bills having to do with obstruction or public safety, but at their core they have one intent and effect — and that is to suppress dissent.”

“. . . The ACLU will fight in statehouses against any bill that violates the First Amendment, and for any that become law, we stand ready to go to court.  We’re confident the courts will see these bills for what they are: unlawful infringements of people’s right to speak out.”

“We’ve also seen a troubling trend of companies attempting to squelch the freedom of speech of the people who disagree with their practices.  Take the residents of Uniontown, Alabama for example. When four residents of Uniontown — a poor, predominately black town with a median per capita  income of $8,000 — decided to fight the hazardous coal ash that Georgia-based Green Group Holdings keeps in a landfill in their community, they were sued for defamation by the company to the tune of $30 million.”

“No one should face a multimillion-dollar federal lawsuit just for organizing and speaking out for the health and well-being of their community. The ACLU took up the case and won a critical victory on behalf of the residents of Uniontown when the court dismissed the case. . . .”

Woman Convicted for Laughing During Congressional Hearing

“One horselaugh is worth ten thousand syllogisms.” — H.L. Mencken

Ms. Desiree Fairooz

According to Ryan J. Reilly writing in the Huffington Post,  a “U.S. Capitol Police officer . . . decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January . . . . [P]rosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody. . . .”

“Desiree Fairooz, [a librarian and 61-year-old] activist affiliated with the group Code Pink, . . . laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of ‘treating all Americans equally under the law is clear and well-documented.’ Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room. . . .”

**** Ben Mathis-Lilley writing in Slate has just reported that a “jury in Washington has convicted a 61-year-old protester named Desiree Fairooz of disorderly conduct and “parading or demonstrating on Capitol grounds” because she laughed out loud during Attorney General Jeff Sessions’ confirmation hearing. Fairooz could be sentenced to up to a year in prison. . . .”

→ Press Advisory, CODEPINK Members Stand Trial for Intervening at Jeff Session Confirmation Hearing, May 1, 2017

→ James Bovard, Arresting someone for laughing may sound funny, but it’s no joke, Washington Post, May 3, 2017 (“It isn’t the first time federal cops have attempted to enforce the difference between licit and illicit laughter, though, and unfortunately, it might not be the last. Laughing got me tossed out of the press box at the Supreme Court in March 1995. I was on assignment for Playboy, covering arguments in a case involving an Arkansas woman who had sold a small amount of illegal drugs to a government informant and was later the target of a no-knock police raid. Then, too, some laughter was okay, and some wasn’t: When then-Chief Justice William Rehnquist mocked one lawyer’s assertion, everyone in the house responded with a polite chuckle.”)

→ Christopher Mele, Is It a Crime to Laugh at a Congressional Hearing? A Jury Will Decide, New York Times, May 3, 2017 (“Two other activists, Tighe Barry and Lenny Bianchi, dressed as Ku Klux Klan members with white hoods and robes, stood up before the hearing started and were also charged.All three pleaded not guilty to the charges, rejecting a plea deal and demanding a trial. If she is convicted on both charges, Ms. Fairooz said she faces up to 12 months in prison.”)

Headline: Trump’s Chief of Staff threatens free speech crackdown

This from Amy Howe over at SCOTUSblog: “Despite Justice Gorsuch’s participation in last week’s conference, the court once again did not act on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a challenge by a Colorado “cake artist” who objects to having to create cakes for same-sex weddings. Going into last week’s conference, the justices had relisted the case seven times, with an eighth presumably to follow. While Justice Antonin Scalia was still alive, the justices had declined to review a similar decision out of New Mexico, so it’s not clear why they have not yet acted on this case, although the most likely scenario is that one or more of the justices is writing an opinion regarding the court’s denial of review.”

Upcoming Event on Commercial Speech

Commercial Speech & The First Amendment:Creeping Commercial Speech 

That’s the title for a conference being hosted by the Floyd Abrams Institute for Freedom of Expression at Yale law School

Date & Time: June 5, 2017 from 8:30 a.m. to 2:30 p.m

Location: Patterson Belnap Webb & Tyler LLP, 1133 6th Ave #22, New York, NY 10036

To Register: Go here

Description (below) 

The Creep and its Impact

In the absence of a considered or even consistent definition of commercial speech, regulators and legislatures continue to limit speech by classifying it as “commercial” speech.  Kasky v. Nike versus Citizens United, Sorrell and Reed:  what scrutiny is to be applied in evaluating the constitutionality of speech regulation?  How are courts applying Reed and Sorrell in judicial review of statutes and regulations abridging freedom of speech.

• Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
• Steven G. Brody, Partner, Morgan, Lewis & Bockius LLP
• Jonathan Donnellan, Vice President and Deputy General Counsel, Hearst Corporation

Moderated by Bruce Johnson, Partner, Davis Wright Tremaine LLP

Right of Publicity

The expansion of right of publicity claims against content classified as “commercial” poses a substantial chilling effect on free speech.  The opportunity to punish speech through litigation costs as well as runaway damage awards against speech or speakers that are disfavored or unpopular is exploding. Increasing concerns for individual “privacy” are expanding claims for “commercial appropriation” of identity against creators of content in a variety of genres and new media. Is there a definition of “commercial” that might put boundaries on these claims that the Supreme Court might adopt?

• Jennifer Rothman, Professor of Law and Joseph Scott Fellow, Loyola Law School (Los Angeles), Loyola   Marymount University
• Katherine Surprenant, General Counsel – National Media & Marketing, Meredith Corporation
• Alonzo Wickers, Partner, Davis Wright Tremaine LLP

Moderated by Rick Kurnit, Partner, Frankfurt Kurnit Klein & Selz PC

Beyond “Native Advertising”

As media try to stay both economically and editorially relevant, they are creating new business models and formats both for their own content and for that of advertisers and brands.  Where do these new models and formats fit within First Amendment analysis?  Will the creep of commercial speech regulation inhibit or even make them untenable? And can the framework for commercial speech regulation be stretched to cover fake news?

• Eric Goldman, Professor, Santa Clara University School of Law
• Tamara Piety, Professor of Law, University of Tulsa College of Law
• David Perpich, President and General Manager of the Wirecutter.

Moderated by Scott Dailard, Partner, Cooley LLP

→ Application for New York accreditation of this program is currently pending. 

Funders:  We want to thank the organizations that funded this Conference:

Avvo, Inc.     Cooley LLP      Davis Wright Tremaine LLP       Fox Rothschild

Frankfurt Kurnit Klein & Selz PC      Levine Sullivan Koch & Schulz, LLP

Abrams on Book Tour 

Roger Pilon & Floyd Abrams @ Cato Institute

Forthcoming

• National Constitution Center, Jeffrey Rosen interviewing Floyd Abrams, May 8, 2017 (live streaming)

Laura Handman, Floyd Abrams & Ron Collins @ Newseum, (pic by Bruce Guthrie)

Earlier this week & last week

• Cato Institute, Roger Pilon (moderator), Floyd Abarms followed by comments from Ronald Collins & Ilya Shapiro (video here)
• Newseum, Inside Media, Gene Policinski interviewing Floyd Abrams, April 30, 2017

Related

• Daniel Shuchman, Book Review, A Vigilant Defense of Free Speech, Wall Street Journal, April 30, 2017
• Radio Interview, WFAE, Charlotte’s NPR News Source, May 2, 2017

More on Upcoming Masses Conference

In an earleir post, I reproduecd a draft of an upcoming NYU Law conference to commemorate the centennial anniversary of Hand’s Masses decision.

That post failed to mention that the Sandra Day O’Connor College of Law is a sponsor of the conference.

→ Conference Co-Organizers: Professors Thomas Healy & James Weinstein

There is, of course, more to be said about this impressive upcoming conference, and I will post more as the event draws near.

Forthcoming Books

•  Mickey Huff, Andy Lee Roth, et al, Censored 2018: Press Freedoms in a “Post-Truth” Society-The Top Censored Stories and Media Analysis of 2016-2017 (Seven Stories Press, October 3, 2017)
• John Palfrey, Safe Spaces, Brave Spaces: Diversity and Free Expression in Education (MIT Press, Sep 22, 2017)
• Jeremy Geltzer, Film Censorship in America: A State-by-State History (McFarland, October 16, 2017)

New & Notable Scholarly Article

• Benjamin Plener Cover, The First Amendment Right to a Remedy, University of California, Davis Law Review (2017)

Prof. Benjamin Cover

Abstract: Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts.

The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion requirement, granting an official qualified or absolute immunity from suit, or drastically reducing a damages award pursuant to a statutory cap. By defining court access too narrowly, the prevailing theory of the right to petition renders the First Amendment silent in the face of these threats.

News, Editorials, Op-eds, Blog Posts 

1. David Canfield, Stephen Colbert Previews Trump’s Proposed Changes to the First Amendment, Slate, May 3, 2017
2. Joe Concha, Maddow: ‘It’s a dangerous time for the First Amendment’, The Hill, May 3, 2017
3. Eugene Volokh, Brief follow-up in N.Y. libel takedown order forgery prosecution, Volokh Conspiracy, May 2, 2017
4. Stuart Benjamin, Choosing which cable channels to provide is speech, but offering Internet access is not, Volokh Conspiracy, May 1, 2017
5. Scott Shackford, No, Trump Won’t Change the First Amendment, But It Matters That People Want To, Reason.com, May 1, 2017
6. Editorial, Trump’s War on Journalism, Los Angeles Times, April 5, 2017

Today in First Amendment History

William Henry Gobitas (far left), Walter Gobitas, and Lillian Gobitas after the children were expelled from school for not saluting the flag in 1935.

May 3, 1937: “On this day, Walter Gobitas (the family name was misspelled as Gobitis in the court case) sued the Minersville, Pennsylvania, School Board, in a case that ended up in the Supreme Court. In Minersville School District v. Gobitis (June 3, 1940), the court upheld the compulsory salute. Many observers then and now have regarded Justice Felix Frankfurter’s opinion, which put primary emphasis on the need for national unity, as a terrible opinion with misplaced values. In a dramatic reversal three years later, however, the court ruled the compulsory flag salute unconstitutional in West Virginia v. Barnette on June 14, 1943). Many observers regard Justice Robert Jackson’s majority opinion as one of the most eloquent statements on the importance of freedom of conscience in a free society.” [Source: Today in Civil Liberties History]

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)
2. Mulligan v. Nichols

Summary Disposition

1. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Alabama Democratic Conference v. Marshall
2. Augsburg Confession
3. Keefe v. Adams
4. Scott v. Georgia
5. Bondi v. Dana’s Railroad Supply
6. Bennie v. Munn
7. Flytenow v. Federal Aviation Administration
8. Armstrong v. Thompson
9. Wolfson v. Concannon
10. Dart v. Backpage.com
11. NCAA v. O’Bannon
12. Mech v. School Board of Palm Beach County
13. Williams v. Coalition for Secular Government 
14. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on April 28, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #151: May 10 2017

Last Scheduled FAN, #149: On hate speech: Will Howard Dean publicly debate Eugene Volokh?

[F]or those who believe that the Speech Clause has meaning beyond its strategic use, the application of the speech right must have limits. In other words, the outward creep of the speech doctrine’s boundaries need not be tolerated as “freedom for the [speech] that we hate.” — Morgan N. Weiland

I regard [the campaign finance issue] as the biggest liberal blindspot in First Amendment struggles in my entire career at the ACLU. –– Ira Glasser 

∇ ∇ ∇ ∇ 

Morgan Weiland

“Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition” is the title of a forthcoming article in the Stanford Law Review.

The author is Morgan N. Weiland, an attorney and PhD candidate at Stanford University specializing in speech, press, and technology law and ethics. Next year she will clerk for Ninth Circuit Judge M. Margaret McKeown. Here is how Ms. Weiland begins the abstract to her forthcoming article:

“Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.”

“This Article excavates the libertarian tradition through an analysis of Supreme Court cases that, beginning in the 1970s, consistently expanded speech protections by striking down limits on commercial speech and corporate political spending. The Court justified this expansion with the rationale of vindicating listeners’ rights in the free flow of information—the corporate benefit was incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. This is the libertarian tradition. Today, the tradition has abandoned listeners’ rights altogether, directly embracing corporate speech rights. . . .”

As Ms. Weiland sees it, the “libertarian tradition” threatens two longstanding free-speech theories:  “the republican and liberal tradition.” Against that conceptual backdrop, she adds:

“First, by reconceptualizing listeners as individuals whose interests are vindicated through deregulation, the libertarian tradition draws from and is hostile to the republican tradition, which emphasizes the rights of the public, figured as listeners. Second, because the libertarian tradition focuses on vindicating corporate speech rights, it strips away the hallmarks of individual autonomy central to the liberal tradition, leaving only a naked speech right against the state, which this article names ‘thin autonomy.’ If the two traditions have value, then the libertarian tradition is problematic.

This insight cuts against the widespread belief that to protect speech we must be willing to countenance nearly any application of the right, even—and perhaps especially—if it goes against our most deeply held beliefs. That view is a myth; the speech right must have limits.”

 Related 

Weiland on Press Clause & Shield Legislation 

“Weiland’s scholarship and policy work has also focused on the press clause and journalism. She is researching the doctrinal development of the press clause, a paper that was supported by Stanford’s Constitutional Law Center and presented at the Communication Department’s Rebele Symposium in April 2015.”

“Related to this research, Weiland has engaged extensively with the federal shield bill debate. She has spoken about the bill and its potential impact on journalism at AEJMC’s 2014 conference. Free Press, in a report titled “Acts of Journalism: Defining Press Freedom in the Digital Age,” notes that “[j]ournalism and First Amendment scholar Morgan Weiland has argued that lawmakers should simply drop the definition of ‘covered persons’ in both the House and Senate bills and rely instead on the House definition of journalism.” She advanced these arguments while working as a legal intern at the Electronic Frontier Foundation in 2013, where she critiqued and helped to change the legislation. Her work on congressional shield legislation is also featured in the Stanford Lawyer.” [Source here]

Podcast: Interview with former ACLU Executive Director Ira Glasser

[F]or me the First Amendment and all those always was a strategic argument. I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. . . .— Ira Glasser 

Ira Glasser

Over at FIRE’s So to Speak podcast series Nico Perrino interviews one the ACLU’s giants, Ira Glasser (transcript here).

In this wide-ranging and spirited interview, the liberal Glasser speaks about everything from

• his teaching math at Queens and Sarah Lawrence Colleges,
• to the people who inspired him (e.g., Murray Kempton, I.F. Stone and Max Lerner),
• to his admiration for Jackie Robinson,
• to his early days in 1967 at the NYCLU with Aryeh Neier (Glasser is not a lawyer),
• to his understanding of  how real political change comes about,
• to his presence at March on Washington in 1963 when he was 25 (“I’d never seen anything like that in my life before, or since”)
• to his activism during the Nixon years
• to his views on the ACLU’s involvement in the Skokie case (“It was a surprise to us that it got so controversial”)
• to his historical discussion of Buckley v. Valeo and how of campaign-finace laws were tapped to go after liberals,
• to his views on progressives’ call to amend the First Amendment in order to overrule Citizens United (“You are handing your enemies the tools to suppress you!”)
• to his reply to Perrino’s last question: “What are you most proud of?” — Glasser: “There are two answers: One answer is substantive, and one answer is organizational . . . .” [You’ll have to listen to the podcast or read the transcript to hear the rest of Glasser’s answer.]

Related 

• See also Ira Glasser on Firing Line with William F. Buckley (YouTube)
• Ira Glasser, Visions of Liberty: The Bill of Rights for All Americans (1993)

[B]ack in 1972, the ACLU, which by the way is . . . a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. — Ira Glasser (2011)

• Ira Glasser, Understanding the Citizens United Ruling, Huffington Post, May 25, 2011
• Floyd Abrams, Ira Glasser & Joel Gora, The ACLU Approves Limits on Speech, Wall Street Journal, April 30, 2010 (“If that headline has a certain man bites dog quality, it’s because for almost 40 years the ACLU was the one major liberal organization that opposed campaign finance restrictions as violating the First Amendment.”)
• Ira Glasser, Standing Strong for Free Speech: A Response to Geoffrey Stone, Huffington Post, Sept. 12, 2014

From Stanford Law Review Online: Judge Neil M. Gorsuch on Free Expression

Brian Baran

Brian C. Baran & Nathaniel Rubin have just published an essay entitled Mainstream Jurisprudence and Some First Amendment Problems — Judge Neil M. Gorsuch on Free Expression. Here is an excerpt from the introduction to their essay:

Significant differences remain between Judge Gorsuch and Justice Scalia. Justice Scalia’s trademark originalism has barely registered in Judge Gorsuch’s free speech jurisprudence. Justice Scalia himself did not use originalism to resolve First Amendment questions as much as he might have. By one account, he used it only about 30% of the time. But that is still a lot of cases—and a lot more than Judge Gorsuch’s 0% .Moreover, a clear minimalist thread runs through Judge Gorsuch’s decisions, while Justice Scalia was not known for his minimalism.

Nathaniel Rubin

Ultimately, even though Judge Gorsuch’s First Amendment methodology may diverge from Justice Scalia’s, we conclude Judge Gorsuch is unlikely to work a sea change in this area of the Court’s jurisprudence.To understand Judge Gorsuch’s potential impact on free expression jurisprudence as a Justice, we must look first to his work in this area as a judge.

We begin in Part I with an overview of Judge Gorsuch’s published free expression opinions. In Part II, we examine Judge Gorsuch’s originalism and minimalism. In Part III, we look at Judge Gorsuch’s substantive vision for what types of expression the First Amendment protects. . . . 

Their conclusion: Ultimately, we do not expect a potential Justice Gorsuch to advocate any major changes to the Court’s First Amendment freedom of expression jurisprudence. Methodologically, he cannot be called a “Scalia clone.” Perhaps most significantly, if you were hoping for a Justice who would “open up our libel laws,” Judge Gorsuch is not your man.

Montana’s Criminal Defamation Law Challenged 

Courthouse News Service:

Robert Myers

“A new federal lawsuit involving a contentious Montana judicial race last year claims an investigation into campaign statements is having a chilling effect on one of the candidate’s ability to defend himself in disciplinary proceedings.”

“Robert Myers wants a federal judge to strike down Montana’s criminal defamation statute as unconstitutional. [Montana criminal defamation code here] He says doing so will not only prevent Myers from being “illegally prosecuted in a criminal proceeding,” but also may encourage other witnesses to come forward without fear that their testimony regarding possible misconduct by Ravalli County District Judge Jeffrey Langton will result in them being charged with criminal defamation.”

“The newest complaint, filed Thursday, comes almost a year after Myers sued Chief Disciplinary Counsel Shaun R. Thompson over alleged ethics violations included in civil disciplinary complaint against him. Myers said Montana’s disciplinary code, which prohibits attorneys from making false statements about judges, forces judicial candidates to forego exercising their fundamental right to criticize their opponents. A trial before U.S. District Court Judge Donald Molloy is set for Sept. 25 in Helena.”

→ ht: Rick Hasen @ Election Law Blog

Headline: “Supreme Court Protesters Plead Guilty to Misdemeanor Charges”

Unnamed protestors

This from Zoe Tillman at BuzzFeed: “Five people who disrupted proceedings at the US Supreme Court to protest the Citizens United decision pleaded guilty on Thursday to two misdemeanor charges, one month after losing a constitutional challenge to part of the case.The defendants face up to a year in prison. There was no plea deal, and the lawyers did not offer any hints about what they would seek at sentencing. A sentencing hearing is scheduled for July 24. . . . ”

“Prosecutors charged Kresling and the other protesters with violating laws against demonstrations and disruptions in and around the Supreme Court. The defendants challenged the constitutionality of one of the charges, which criminalized a ‘harangue,’ ‘oration,’ or loud language at the high court. A federal district judge agreed that “harangue” and “oration” were vague terms and struck that part of the charge. . . .”

→ Robert Barnes, Law restricting protests during high court proceedings is upheld, Washington Post, March 4, 2017

Justice Alito on Freedom of Speech

On February 11, 2017, Justice Samuel Alito received the Statesmanship Award and delivered the keynote speech at the Claremont Institute’s 2017 annual dinner in honor of Sir Winston S. Churchill. Here are a few excerpts from the Justice’s remarks:

Our constitutional system cannot survive unless citizens are allowed to speak freely on issues of public importance. Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans. 

But today, unfortunately, freedom of speech on important subjects is, I believe, in greater danger than at any prior time during my life. Powerful forces want to silence the opposition. Consider this: in the last Congress, 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country. 

This is a startling development. The very idea of amending the First Amendment is quite something. And if this amendment were adopted, freedom of speech as we have known it would be transformed. In the East where I live, we sometimes keep a watch on the weather conditions here in the West, because we know that the jetstream blows from west to east. So if you’re being hit with a big storm here today, that storm may hit us a couple of days later.

→ ht: Rick Hasen @ Election Law Blog

FIRE to Host Summer Conference featuring Daryl Davis & Jeffrey Rosen

The Foundation for Individual Rights in Education (FIRE) recently announced its tenth annual FIRE Student Network Summer Conference. The event will take place from July 14-16, 2017, in Philadelphia; it will feature guest speakers Daryl Davis and Jeffrey Rosen.

“FIRE’s yearly conference is a weekend-long workshop designed to teach students about their rights on campus — and provide the tools to assert and defend them. Our conference brings together college students from around the country and across the ideological spectrum who share a passion for free speech and due process. Attendees will participate in dynamic, interactive workshops hosted by FIRE’s staff members where students will learn about the First Amendment, gain skills to protect and celebrate their civil liberties, and ideas for putting that new knowledge to work back on their campuses.”

“This year, students will also hear from two profoundly accomplished and unique keynote speakers:

Daryl Davis is a professional musician whose achievements embody the transcendent power of both friendship and free and open dialogue. A black man who has spent years befriending members of the Ku Klux Klan, Davis takes an intensely personal approach to showing Klan members that their prejudices are unfounded. His efforts have resulted in numerous Klansmen relinquishing their robes and leaving the group for good. Davis has received critical acclaim for his book “Klan-Destine Relationships: A Black Man’s Odyssey in the Ku Klux Klan” and is the recipient of numerous awards, including the Elliott-Black Award and the Bridge Builder Award, presented by the American Ethical Union and the Washington Ethical Society, respectively. His efforts have been profiled in The Washington Post and The Atlantic, as well as on CNN, NBC, Good Morning America, The Learning Channel, National Public Radio, and many others. Davis is the subject of a recently released PBS documentary entitled “Accidental Courtesy: Daryl Davis, Race & America,” and was recently featured on FIRE’s “So to Speak: The Free Speech Podcast.”

Jeffrey Rosen is president and CEO of the National Constitution Center, a George Washington University Law School professor, and a contributing editor at The Atlantic. Rosen is a graduate of Harvard College, Oxford University, and Yale Law School. His new book, “Louis D. Brandeis: American Prophet,” was published June 1, 2016, on the 100th anniversary of Brandeis’s Supreme Court confirmation. He’s also written extensively on constitutional issues surrounding the judicial system, the intersection of privacy and technology, and more. His essays and commentaries have appeared in The Atlantic, The New York Times Magazine, on National Public Radio, in the New Republic, where he was the legal affairs editor, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the ten best magazine journalists in America, and the Los Angeles Times has dubbed him “the nation’s most widely read and influential legal commentator.”

“The conference will open with a reception on Friday and close with lunch on Sunday. While space is limited, the event is free to attend and open to current students at U.S. colleges and universities, including graduate students and incoming freshmen. Housing and meals will be provided, and a travel reimbursement for up to $300 per student will be available to help students travel to and from Philadelphia.”

→ For more information, go to: thefire.org/conference — apply here

First Amendment Advocate Judith Platt to Retire from AAP 

Judy is irreplaceable.  In addition to leading the AAP Freedom to Read Committee, she has been a key player in three free speech groups — the ALA Freedom to Read Foundation, Media Coalition, and the Free Expression Network. We will miss her fighting spirit and her wonderful humor, which lightened every crisis.  –– Chris Finan (director, American Booksellers for Free Expression)

Judith Platt

She is the Director of Free Expression Advocacy for the Association of American Publishers.  On June 30th Judith Platt will retire from AAP after almost 38 years (more than two decades of them directing the free expression  work of the Association).

“A native of New York and a graduate of Queens College, Judith joined the staff of the Association of American Publishers in 1979. From 1986–2011 she was Director of Communications and Public Affairs and in 1996 also assumed the title of Director of Freedom to Read. Since 2011 she has been Director of Free Expression Advocacy, coordinating the work of the AAP Freedom to Read Committee, the publishing industry advisory body that serves as watchdog and advocate on issues pertaining to intellectual freedom and the First Amendment, and directing AAP’s international freedom to publish activities on behalf of publishers overseas who are subjected to political intimidation and denied free expression rights.”  [Source: Freedom to Read Foundation]

Sophia Castillo

→ Judith Platt, First Amendment Under Siege, Huffington Post, March 18, 2010

→ Judith Platt Receives First Amendment Award from Freedom to Read Foundation, June 19, 2013

Judith Platt (April 15, 2010):  “Burt Joseph was living proof that you can be passionate and principled in what you believe without becoming a zealot. His commitment to free expression never got in the way of his unfailing civility and courtesy, even to those with whom he disagreed.”

∇ ∇ ∇ ∇ 

→ Sophia Castillo will assume Platt’s responsibilities upon her retirement. Ms. Castillo joined AAP in 2015 as a staff attorney.  She holds a Master’s degree from Stanford in Latin American Studies and a J.D. from American University.  She spent three years at the Center for Justice and International Law, a DC-based human rights NGO before  serving as a legal fellow at the Copyright Alliance and a law clerk at the U.S. Copyright Office.

President Trump & the First Amendment 

1. Neil Richards, Free Speech and the Twitter Presidency, University of Illinois Law Review Online (2017)
2. RonNell Andersen Jones & Lisa Grow Sun, Making an Enemy of the Press, University of Illinois Law Review Online (2017)
3. Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center
4. Jonathan Turley, A Showing of Actual malice: The White House “Tires” of the First Amendment, Jonathan Turley, May 4, 2017
5. Trump Considering 1st Amendment Clampdown, The David Pakman Show, May 2, 2017 (YouTube)
6. Michael Newcity, Donald Trump wants the First Amendment both ways, The Herald Sun, May 7, 2017
7. Denis Smith, In Trump World, Wouldn’t It Be Great If The First Amendment Was As Important As The Second?, Plunderblund, May 8, 2017

New & Forthcoming Scholarly Articles

1. Randy J. Kozel, Precedent and Speech, Michigan Law Review (2017)
2. Leslie Gielow Jacobs, Making Sense of Secondary Effects Analysis after Reed v. Town of Gilbert, Santa Clara Law Review (forthcoming 2017)
3. Christopher F. Edmunds, The ‘Tinker-Bell’ Framework: The Fifth Circuit Places Facebook inside the Schoolhouse Gate in Bell v. Itawamba County School Board, Tulane Law Review (forthcoming)

New & Notable Blog Posts

1. Erica Goldberg, Partisans Versus Contrarians: The New York Times, The Harvard Business Review, and the Orwellian Distortion of the Free Speech Debate on College Campuses, In a Crowded Theater, May 8, 2017
2. Ruthann Robson, Colbert, the FCC, and the First Amendment, Constitutional Law Prof Blog, May 7, 2017

New Blasphemy Cases (abroad) 

1. Eugene Volokh, Comedian Stephen Fry facing blasphemy investigation in Ireland, The Volokh Conspiracy, May 7, 2017
2. Eugene Volokh, Blasphemy allegations in Pakistan and Bangladesh, The Volokh Conspiracy, May 3, 2017

Students’ Speech Rights

1. Brian McVicar, Campus free speech bill would penalize students who ‘infringe’ on first amendment rights of others, Michigan Live, May 9, 2016
2. Andy Ngo, Students protest gay conservative speaker as he defends free speech at Portland State, The College Fix, May 9, 2017
3. Howard Fischer, Arizona House OKs free speech protections to student journalists, Tuson.com, May 8, 2017
4. Derek Hawkins, Does the First Amendment protect ‘liking’ a racist Instagram post? Some Calif. students say it does, Washington Post, May 5, 2017
5. Peter Bonilla, Marquette professor John McAdams vows appeal after setback in suit against university, FIRE, May 5, 2017
6. Adam Goldstein, Newspaper confiscated, adviser suspended at Hutchinson Community College, FIRE, May 4, 2017

News, Editorials, Op-eds, Commentaries & Blog Posts

1. Pittsburgh Post-Gazette Editorial, Beware legislation that chips away at free speech, Watertown Daily News, May 9, 2017
2. Jeffrey Lord, A Washington press corps dinner lauds free speech — or did it?, The American Spectator, May 8, 2017
3. Tonio Maglio, Writers Guild ‘Appalled’ at FCC Investigation of Stephen Colbert: ‘Willful Disregard of First Amendment’, The Wrap, May 8, 2017
4. Janet Williams, Living the First Amendment is hard work, Statehouse File.com, May 8, 2017
5. Jesse Singal, Are People Who Defend Free Speech More Racist Than Those Who Do Not?, Science of Us, May  8, 2017
6. David Keene, Preserving free speech for all, Washington Times, May 8, 2017
7. Erica Goldberg,, The FCC’s Investigation of Stephen Colbert Likely Violates The First Amendment, In a Crowded Theater, May 6, 2017
8. Jo Mannies, Federal judge: Parts of Missouri’s campaign finance law unconstitutional; $2,600 donor limit stays, St. Louis Public Radio, May 5, 2017

YouTube: Two Knight First Amendment Institute Events 

• Are First Amendment Values Under Siege?, Knight First Amendment Institute, posted May 4, 2017 (Participants, from left to right: Jamal Greene, Suzanne Nossel, Jeffrey Abramson, Leslie Kendrick, & Vince Blasi)

(from left to right: Zeynep Tufekci, Tim Wu & Beth Simone Noveck)

• Free Speech in the Networked World, Knight First Amendment Institute, posted May 4, 2017 (Participants: Alberto Ibarguen, Lincoln Caplan, Beth Simone Noveck, Tim Wu, &  Zeynep Tufekci)

Rosen Interviews Abrams @ National Constitution Center

Jeffrey Rosen & Floyd Abrams

Floyd Abrams and the Soul of the First Amendment, Natioanl Constitution Center, May 8, 2017 (interviewed by Jeffrey Rosen)

Today in First Amendment History 

May 10, 1970: “As part of the nationwide protests of the invasion of Cambodia that began on May 1, 1970, following President Richard Nixon’s expansion of the Vietnam War the day before, a college student hung an American flag upside down, with peace symbols attached. He was arrested and convicted under the State of Washington’s “improper use” clause of its flag statute law. The Supreme Court overturned his conviction, in Spence v. Washington.” [Source: Today in Civil Liberties History]

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Republican Party of Louisiana, et al. v. FEC
2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary) (relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21 and April 28 conferences)
3. Mulligan v. Nichols

Summary Disposition

1. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Alabama Democratic Conference v. Marshall
2. Augsburg Confession
3. Keefe v. Adams
4. Scott v. Georgia
5. Bondi v. Dana’s Railroad Supply
6. Bennie v. Munn
7. Flytenow v. Federal Aviation Administration
8. Armstrong v. Thompson
9. Wolfson v. Concannon
10. Dart v. Backpage.com
11. NCAA v. O’Bannon
12. Mech v. School Board of Palm Beach County
13. Williams v. Coalition for Secular Government 
14. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on May 11, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #152: May 17 2017

Last Scheduled FAN, # 150: Trend Ends: ACLU’s 2017 Action Plan Stands “Up for Free Speech”

Breaking News from the New York Times: 

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

_______________________

Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

→ Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)

Related

• Gilbert E. Roe, Our Judicial Oligarchy (1912) (introduction by Robert M. LaFollette)
• Gilbert E. Roe, “Reasonable restrictions upon freedom of assemblage” (1915) (Free Speech League pamphlet)

→ Gilbert Roe died in 1929.

* * * *

Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free Speech. Here is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

→ Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

Cert. Petition filed in Right to Assembly Protest Case

The case is Garcia v. Bloomberg (16-1082). The issue is whether, when officers permit individuals to exercise First Amendment rights to speech and peaceful assembly, officers must provide fair warning prior to arresting demonstrators for participation in the demonstration.”

Andrew Pincus

→ In an amicus brief on behalf of the Reporters Committee for Freedom of the Press and the National Press Photographers Association, Robert Corn-Revere (joined by Eric Feder, Bruce Brown, Gregg Leslie & Mickey Osterreicher) argues that:

1. The First Amendment Rights of Freedomof the Press and Freedom to Peaceably Assemble Are Intertwined, and
2. The News Media Has a ParticularlyStrong Interest in Curbing Law Enforcement Abuses During PublicProtests

The brief opens with this observation:

State “Ag-Gag” Law Challenged 

Jay Stanley

This from Jay Stanley writing in an ACLU blog Post: “Today the ACLU of Idaho will be participating in a court argument that is crucial for the future of corporate whistleblowers’ rights and their ability to photograph wrongdoing. The argument, before the federal 9th Circuit Court of Appeals in Seattle, is to consider the constitutionality of a so-called “Ag-Gag” law enacted in 2014 by the state of Idaho.”

[The case: Animal Legal Defense Fund v. Wasden. Video of Ninth Circuit oral arguments here]

The other day I spoke with ACLU of Idaho Legal Director Richard Eppink, and he explained what’s at stake:

A number of states have passed these “Ag Gag laws.” Idaho’s version makes it a crime to use a misrepresentation to gain access to, or employment at, an “agricultural production facility”—places like factory farms and slaugterhouses, but also encompassing a bunch of other places by the way they define this. It’s aimed primarily at journalists and undercover investigators.

Idaho’s Ag Gag statute also makes it a crime to take video or audio recordings in these places without the owner’s permission. So, workers who want to document unsafe working conditions, investigators who want to document animal cruelty, people who are just visiting a farm and want to document what they see—anything like that would be punishable in Idaho by up to a year in jail. And you’d have to pay twice the “damages” that were caused to the agricultural production facility as a result of your recording. This is specifically targeted at organizations like Mercy for Animals and the Animal Legal Defense Fund, which have exposed animal cruelty and put it on the Internet.

Eppink told me that the ACLU of Idaho lobbied against this law when it was in the legislature in 2014. They were joined by a wide spectrum of allies, including animal rights and welfare organizations, labor unions, and reporters’ groups. Also opposing the law were immigrant rights groups; in Idaho, as in most places, a lot of the agricultural work is done by immigrants, many of them undocumented, who are exposed to some of the most dangerous working conditions. This law would prevent them from being able document those conditions.

Nevertheless, the Idaho legislature passed, and the governor signed, the law. Aftewards, Eppink told me,

the Animal Legal Defense Fund contacted us to see if we’d be interested in joining them in a lawsuit, which we decided to do. It’s a facial challenge to the law both on First Amendment speech grounds and equal protection grounds, and has a diverse group of plaintiffs from the same groups that lobbied against the bill.

We won the first round when the federal district court struck the law down on both speech and equal protection grounds. The state appealed to the 9th Circuit, and now we’re defending that victory on appeal. Justin Marceau, a Denver law professor who works with the Animal Legal Defense Fund, will be arguing in Seattle on Friday and I will be there with him.

I asked Eppink: what about the argument that. while Americans have a First Amendment right to take photographs of things in plain view in public spaces, it’s also true that (as we describe in our Know Your Rights guide for photographers) private property owners have the right to set rules about the taking of photos and videos on their property? His response:

Certainly all of us have a right to control what happens on our private property. But remember that we’re not talking about the privacy of the home here—we’re talking about a heavily regulated industry that affects all of us: food production. And most of us don’t have the state government coming in and jailing people and making them pay twice the business loss caused by bad publicity from release of a video of behaviors the public finds abhorrent. In the past we’ve always left damage settlements to private disputes between individuals. Certainly I can call the police if somebody is trespassing, but it’s another thing entirely to add criminal penalties when property owners say “Not only were they trespassing, officer, but they took a video that I don’t like!”

Overall this argument is significant for us all because it has implications that go far beyond agriculture. As Eppink put it:

This law strikes at the core assumption that I think many of us had up to this point, which is that undercover journalists—people like Upton Sinclair who wrote The Jungle—have been serving an important role in exposing to the public what’s happening in their food production systems and other industries that we enjoy the benefits of.

And all of us working against this law understand that agriculture is being used as the test case for this type of law, and that if it succeeds in withstanding constitutional challenge, and the courts say “yes you can criminally punish anyone for taking video,” then we’ll almost certainly see this law spread to other industries like mining and even banking.

In other words, the risk is that we’ll set up a society where businesses and corporations can have cameras on us everywhere we go, but we can’t document what’s happening in these places. It will be the property owners who by and large have the power of the camera to present their side of the story using video without the rest of us being able to present ours.

The 9th Circuit is expected to hand down its ruling later this year.

Campus-Free-Speech Legislation in the States

This from Colleen Flaherty writing in Inside Higher Ed: “Numerous states are considering legislation designed to ensure free speech on college campuses, following violent protests over speakers at the University of California, Berkeley, and Middlebury College. Some of the bills would, controversially, mandate punishing students who disrupt campus speakers and require institutions to keep mum on political issues — and perhaps nowhere has the debate been as contentious as in Wisconsin.”

“Republican lawmakers who support a bill there say it would ensure all views may be heard across public universities. Those opposed question the proposal’s scope and see it as one more legislative incursion into academic life. That’s following last session’s gutting of legal protections for tenure in Wisconsin.”

“‘In any public forum, and particularly at a public university, any attempts to limit expression must be done with extreme caution, reflecting compelling institutional interests and respecting the First Amendment,’ David Vanness, an associate professor of population health sciences at the University of Wisconsin at Madison, told legislators last week during a Wisconsin Assembly higher education committee hearing on the so-called Kremer bill. It’s backed by key Republicans, including Speaker Robin Vos. . . .”

Related

1. Joe Cohn, New Tennessee law is good news for academic freedom, FIRE, May 15, 2017
2. Colleen Flaherty, Tennessee Free Speech Bill Signed into Law, Inside Higher Ed, May 11, 2017
3. Colleen Flaherty, North Carolina, Wisconsin Bills Would Mandate Punishment for Campus Speech Disrupters, Inside Higher Ed, April 28, 2017
4. Colleen Flaherty, Dealing with Disrupters, Inside Higher Ed, March 22, 2017

Institute for Constitutional History to Host Free-Speech Seminar

Host: Institute for Constitutional History

Professor Garrett Epps

Dates: Tuesday nights, 6:00-8:00 p.m., September 12, 19, October 17, 24, November 14, and 21, 2017

Location:  The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Instructor:  Garrett Epps is Professor of Law at the University of Baltimore and the editor of Freedom of the Press (The First Amendment): Its Constitutional History and the Contemporary Debate (Prometheus, 2008). A former reporter for The Washington Monthly, he is also Supreme Court correspondent for The Atlantic Online.

Application Process: Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at MMarcus@nyhistory.org until May 15, 2017.*  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

* Technically speaking, the deadline seems to have passed?

Professor Eugene Volokh

Volokh: Lower courts have consistently struck down campus speech codes

This from Professor Eugene Volokh:

“The Supreme Court has made ‘crystal clear’ that the government may not discriminate based on viewpoint, even in limited public fora such as university open spaces (or for that matter even university programs for funding student speech). Lower courts have consistently struck down campus speech codes aimed at supposedly bigoted speech. See, e.g.:

1. Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1184-85 (6th Cir. 1995);
2. DeJohn v. Temple Univ., 537 F.3d 301, 316-17, 320 (3d Cir. 2008);
3. McCauley v. Univ. of V.I., 618 F.3d 232, 237-38, 250 (3d Cir. 2010);
4. Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.3d 386, 388-89, 391, 393 (4th Cir. 1993);
5. College Republicans v. Reed, 523 F. Supp. 2d 1005, 1010-11, 1021 (N.D. Cal. 2007);
6. Roberts v. Haragan, 346 F. Supp. 2d 853, 870-72 (N.D. Tex. 2004);
7. Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 373 (M.D. Pa. 2003);
8. Booher v. Bd. of Regents of N. Ky. Univ., 1998 U.S. Dist. LEXIS 11404, *28-*31 (E.D. Ky. 1998);
9. UWM Post, Inc. v. Regents, 774 F. Supp. 1163, 1165-66, 1173, 1177 (E.D. Wis. 1991);
10. Doe v. Univ. of Mich., 721 F. Supp. 852, 856, 864-66 (E.D. Mich. 1989).

“And in Christian Legal Society v. Martinez (2010), the Court gave students’ freedom to ‘express any viewpoint they wish — including a discriminatory one’ as an example of “this Court’s tradition of protect[ing] the freedom to express the thought that we hate” (quotation marks omitted). There is no First Amendment exception for ‘hate speech‘ or ‘racist signs, symbols and speech.'”

Forthcoming Book

• Joel Simon, The New Censorship: Inside the Global Battle for Media Freedom (Columbia University Press, January 23, 2018)

New & Notable Blog Posts

1. Eugene Volokh, Is projecting ‘Pay Trump Bribes Here’ onto a wall of the Trump Hotel a trespass?, The Volokh Conspiracy, May 16, 2017
2. Erica Goldberg, The Resistance and the First Amendment, In a Crowded Theater, May 16, 2017
3. Eugene Volokh, Kentucky court rejects government attempt to punish printer for refusing to print ‘Lexington [Gay] Pride Festival’ T-shirt, The Volokh Conspiracy, May 14, 2017
4. Eugene Volokh, Share on TwitterShare via EmailMontana criminal libel investigation for accusing a judge of misbehavior, The Volokh Conspiracy, May 11, 2017

News, Editorials, Op-eds, & Blog Posts

1. Mozilla and Stanford Law Panel: What Role Does the First Amendment Have in the Patent Law?, JDSupra, May 16, 2017
2. Weekend rallies protected by First Amendment, including torch burning, CBS19, May 15, 2017
3. Staff Report, Augusta museum to launch traveling exhibit on First Amendment, Centralmaine.com, May 15, 2017

Video: In re Judith Miller – National Security & the Reporter’s Privilege

(courtesy Ann Wilkins, D.C. Circuit)

This from the Historical Society of the District of Columbia: “On February 14, 2017, the Society sponsored a program to explore the common-law basis for a reporter’s privilege and how best to strike the balance between the public’s right to know and the Government’s need to secure information in the national interest. The program began with remarks by Professor David Pozen of Columbia Law School. He provided the historical background to the case in which New York Times reporter Judith Miller refused to comply with a grand jury subpoena that sought access to documents and testimony related to conversations she had had with a confidential source. Professor Pozen also highlighted the unusual nature of this case – unlike the paradigm situation where a reporter seeks to protect the identity of a low-level whistleblower regarding government corruption, this case involved the strategic leaking of information by high-level government officials in an apparent effort to discredit a low-level government official.”

“Once the stage was set, the program moved to a reenactment of the argument before the D.C. Circuit. Laura R. Handman of Davis Wright Tremaine LLP presented the case on behalf of Judith Miller, arguing that the court should recognize a federal common-law reporter’s privilege to protect the confidentiality of her sources. Amy Jeffress of Arnold & Porter Kaye Scholer LLP argued the case for the Government, stressing that the Supreme Court had already rejected such a privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), and that lower federal courts are not empowered to create new privileges.”

“The advocates argued their positions to Judge David S. Tatel and Senior Judge David B. Sentelle, two of the original panelists that heard the case in 2004.”

“Following the reenactment, former Deputy Attorney General James M. Cole, now with Sidley Austin LLP, joined Professor Pozen, Ms. Handman, and Ms. Jeffress on a panel* to discuss the broader implications of the case and the relationship between the press and the government. Moderator Stuart S. Taylor, Jr.,(pictured left) challenged the panel to consider how best to think about a reporter’s privilege now that anyone with a Twitter account may qualify as a journalist. The panel also explored the benefits of the Department of Justice’s current policy to restrict the ability of prosecutors to compel reporters and media outlets to disclose information as well as the drawbacks of having such a policy reflected only in internal guidance as opposed to a federal statute.”

→ The Federal Judicial Center (FJC) videotaped the program which can be found here.

YouTube

• Tucker Carlson, Do They See the IRONY? Tucker Discusses Free Speech With Gay Conservative Journalist, Fox News, May 15, 2017

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Garcia v. Bloomberg
2. Republican Party of Louisiana, et al. v. FEC
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary) (“For the ninth conference in a row, the justices did not act on the petition for review in Masterpiece, a Colorado baker’s challenge to the state’s public accommodations law.”)

Summary Disposition

1. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Mulligan v. Nichols
2. Alabama Democratic Conference v. Marshall
3. Augsburg Confession
4. Keefe v. Adams
5. Scott v. Georgia
6. Bondi v. Dana’s Railroad Supply
7. Bennie v. Munn
8. Flytenow v. Federal Aviation Administration
9. Armstrong v. Thompson
10. Wolfson v. Concannon
11. Dart v. Backpage.com
12. NCAA v. O’Bannon
13. Mech v. School Board of Palm Beach County
14. Williams v. Coalition for Secular Government 
15. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on May 18, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #153: May 24 2017

Last Scheduled FAN, # 151: Morgan Weiland Meet Ira Glasser — The First Amendment & the Liberal Dilemma

If you watch music videos or wild-animal adventures on YouTube, you may come upon a public-service announcement by, yes, Professor Richard Epstein. Well, sort of — he’s the brain power behind an animated and podcast series on free speech.

The series is titled Intellections: Activate Your Thinking and contains videos on a range of topics from rent control to health-care insurance to free speech and beyond. Intellections is part of POLICYed, which is funded by the Hoover Institution located on the campus of Stanford University.

Below are three animated videos for which Professor Epstein helped prepare the content:

1. Should Speech that Offends be Prohibited? (transcript here)
2. Who Can Restrict Free Speech? (transcript here)
3. The Limits of Free Speech? (transcript here)

Related Podcasts

1. The Libertarian: “Yale, Safe Spaces, And Free Speech” (Troy Senik interviewing Richard Epstein)
2. Mob Censorship on Campus (Troy Senik interviewing Richard Epstein)
3. The Libertarian: Free Speech on College Campuses (Troy Senik interviewing Richard Epstein)

Fourth Circuit: Wikimedia Has Standing to Challenge NSA Surveillance Program

The case is Wikimedia Foundation, et al v. National Security Agency, et al (4th Cir., May 23, 2017).

Judge Albert Diaz

Plaintiffs Claims: “Plaintiffs—educational, legal, human rights, and media organizations—filed their first amended complaint wherein they ask for, among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA ‘to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.'”

Summary from the court: “The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the “NSA”). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.”

→ Judge Albert Diaz wrote the majority opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Judge Davis wrote a separate opinion dissenting in part.

Majority Opinion: Article III Standing: “[T]he Wikimedia Allegation is that the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications in the course of Upstream surveillance, ‘even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.’ We conclude that this allegation satisfies the three elements of Article III standing.”

“. . . because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”

Judge Andre Davis

→ Judge Andre Davis, concurring in part and dissenting in part: “I agree with the holding that Wikimedia has standing to challenge the NSA’s surveillance of its internet communications. However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part.”

→ Counsel for Appellants: Patrick Christopher Toomey, ACLU Foundation, New York

→ Counsel for Appellees: Catherine H. Dorsey, United States Department of Justice

→ Amicus brief: Wikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

Court Summarily Affirms “Soft Money” Case: Hasen’s Commentary 

Re: Republican Party of Louisiana, et al. v. FEC

This from Professor Rick Hasen over at the Election Law Blog: “This is a surprise to me. Because this case came up on appeal from a three judge court, I thought it was pretty likely the Court would take the case. A decision to affirm means the lower court got it right on the bottom line, even if the reasoning was incorrect.”

Prof. Richard Hasen (credit: Daily Gazette, Swarthmore)

“If my count is correct, this is Jim Bopp’s fourth attempt to get the Court to hear a soft money case to overturn one of the two main pillars of the McCain-Feingold campaign finance law (the Court overturned the other in Citizens United.) In one of those earlier attempts, Justices Kennedy, Scalia, and Thomas dissented from the Court’s refusal to hear the case.  And the Chief Justice has said that he feels an obligation to take appeals that come up through three judge courts. And we know that Justice Gorsuch expressed skepticism of campaign finance laws when he was a Tenth Circuit judge.”

“So what explains the Court refusing to take a case which could have been used to further deregulate campaign financing, by extending the narrow views of corruption and strong reading of the First Amendment that the Supreme Court put forward in Citizens United and McCutcheon? And why did it take only one Court conference to reach this conclusion, when the Court has been taking so long with many other cases (in part as J. Gorsuch got up to speed on the Court’s cases)?”

“This suggests to me that the Court has really no appetite to get back into this area right now—perhaps they want to save their capital in ruling on other high profile cases coming down the line. Perhaps there was something about Bopp’s petition that made the Court believe the issue of overturning the Supreme Court’s decision in McConnell v. FEC (upholding the soft money ban) not properly presented to it.”

“This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.) I expect that unlike most Justices J. Gorsuch may not begin his first few terms cautiously, and then work his way up to his full Supreme Court voice.”

“And that does this mean for campaign finance law? In one sense, this is a victory for campaign finance reformers, because the soft money ban lives for another day. This also means that the Court does not use this case as an opportunity to call other campaign contribution limits into question–so that’s a good thing from reformers’ point of view.”

“On the other hand, we now have a situation where political parties (especially state and local political parties, the subject of Bopp’s petition) are limited in what they can do, while Super PACs and non-disclosing 501c4s can operate without limit, and in the case of c4s, without adequate disclosure. This further weakens the political parties, which many political scientists and election law scholars leads to further polarization and political dysfunction.”

“Perhaps there would be room for some bipartisan reform in this area, if Mitch McConnell were not so difficult here. How about a trade?  Loosen the limits on party fundraising, and in exchange provide for greater campaign finance disclosure by all major players in elections, whether or not they choose to register as a c4.  I doubt McConnell would go for the trade but it would be a good deal all around.”

CJR Headline: “Joe Lieberman Atop FBI Would be a First Amendment Disaster”

Trevor Timm

Over at the Columbia Journalism Review, Trevor Timm writes:

“Former Senator Joe Lieberman is reportedly President Trump’s leading choice to replace the recently-fired James Comey as FBI director. If you’re a person who values free speech and press freedom rights, it’s hard to imagine a worse pick for FBI director than Lieberman.”

“It was only a week ago we learned that Trump allegedly urged Comey in a private meeting to prosecute reporters for publishing classified information. So one of the most vital issues for any confirmation hearing will be whether the next FBI director will respect journalists’ right to report on the government. You don’t have to look far to understand how dangerous an FBI Director Lieberman would be to the journalism profession.”

Joe Lieberman (credit: Politico)

“In 2010, when WikiLeaks, in conjunction with The New York Times, The Guardian, and other papers, started publishing secret State Department cables, then-Senator Lieberman was Congress’s leading advocate for prosecuting the publishers of the cables—First Amendment be damned. At the time, he loudly called for the prosecution of WikiLeaks, saying, “I don’t understand why that hasn’t happened yet. … I think it’s the most serious violation of the Espionage Act in our history, and the consequences globally that have occurred.”

“As for The New York Times, he said they also should be investigated and suggested they should be prosecuted. ‘To me,’ he said, ‘New York Times has committed at least an act of bad citizenship. And whether they’ve committed a crime, I think that bears very intensive inquiry by the Justice Department,” adding it’s “a serious legal question that has to be answered.'”

“While Lieberman didn’t get his wish, he did use his power as a member of Congress to pressure Amazon to stop hosting WikiLeaks on its servers. After Amazon complied, Lieberman went on television and called for other US companies to do the same. Visa, Mastercard, and PayPal followed suit, financially censoring WikiLeaks despite no court proceeding or official government action of any kind against WikiLeaks.”

“Still not fully satisfied, Lieberman wrote leak legislation that would have criminalized publishing certain information regarding human sources of intelligence of US agencies. As Wired made clear at the time, ‘Leaking such information in the first place is already a crime, so the measure is aimed squarely at publishers.’ . . . .”

Headline: “Blumenthal to U.S. Attorney General: protect the press’ First Amendment rights”

Over at News Times, Rob Ryser writes: “U.S. Sen. Richard Blumenthal on Monday asked U.S. Attorney General Jeff Sessions to protect the free press, calling the exercise of its First Amendments rights a hallmark of democracy.”

Senator Blumenthal (credit: CT Mirror)

“‘I write with great concern regarding a recent report in the New York Times alleging that President Trump suggested to former F.B.I. Director James Comey that he should consider jailing journalists for publishing classified information,’ Blumenthal wrote to Sessions in a letter on Monday. ‘This account is among several recent reports of statements attacking and undermining the media.'”

“Blumenthal, the ranking member of the Senate Judiciary Subcommittee on the Constitution, wrote he was concerned about ‘a barrage of baseless attempts by the President and members of his administration to discredit the media and to deter accurate press coverage of the administration’s actions and policies.'”

“‘At this extraordinary moment in our history, the press is simply serving – as it has done since our nation’s founding – to uncover and report vital information, expose wrongdoing, and hold officials accountable.” Blumenthal wrote. “Fear of autocratic censorship led to the First Amendment, which broad, general threats of criminal prosecution violate in spirit if not in law.'”

“Blumenthal asked Sessions to uphold current Department of Justice guidelines, which bar legal action against reporters except under special circumstances that are important to an investigation.”

Video: Allen v. City of Arcata (9th Cir.)

Plaintiff Gregory P. Allen has sued the City of Arcata and two of its public officials (together “Arcata”) under 42 U.S.C. § 1983 for allegedly violating his First Amendment rights. The gist of the complaint is that Arcata put up impediments to the observance of “420” day, the celebration of “cannabis culture” observed by some on April 20th, in the city’s Redwood Park.

• District Court opinion here
• video of 9th Circuit arguments here (May 16, 2017)

Delaware ACLU Sues Town Over Sign Ordinance

Penny Nickerson (credit: Delawareonline)

This from Mindy Bogue writing on the Delaware ACLU website: The American Civil Liberties Union of Delaware has filed suit against the Town of Milton on behalf of a homeowner who was forced to remove several signs reflecting her views on issues of national importance from her front yard. The suit claims that the Milton Town Code violates the free speech provision of the First Amendment of the United States Constitution and Article I, Section 5 of the Delaware Constitution.

Following the 2016 presidential election, Penny Nickerson, a school teacher who owns a home in Milton, posted four signs on her property with messages such as “Love Trumps Hate” and “Women’s Rights = Human Rights.” In mid-February, she was advised by Milton’s code enforcement officer that the signs were in violation of the town code because they were considered to be political.

Ms. Nickerson complied with the code enforcement officer’s request and agreed to temporarily remove the signs. She also asked for a meeting with Town of Milton representatives to explain why the code and its enforcement violated her constitutional right to free speech. The meeting was denied. Nickerson received two letters from the town attorney stating that her signs were not protected by the First Amendment and that she could receive a violation and be fined if she were to repost the signs. So, she turned to the ACLU for assistance.

ACLU lawyer Richard Morse

“Milton cannot restrict the message on a sign because someone made an arbitrary decision that the message is “political,” said Kathleen MacRae, ACLU of Delaware executive director. “The right to speak freely is most important in controversial and turbulent times. Ms. Nickerson has as much right to put a sign on her lawn saying “Love Trumps Hate” as she does to put up a sign that says “House for Sale.”

The Town of Milton code permits many types of messages to be displayed on private property year-round, including church and non-profit messages, professional announcements and advertisements, and real estate and contractor signs. Signs considered by the town to be political are only allowed to be displayed 90 days before and 14 days after a contested election or referendum.

→ Counsel for Plaintiff: Richard H. Morse

Professor Eugene Volokh

So to Speak Podcast: Eugene Volokh & the New Frontiers in First Amendment Law

Where are the new frontiers in First Amendment law? Where do scholars and the courts see the potential for expanding First Amendment protections in the future? What technological developments pose challenges to existing First Amendment protections?

The first part of the interview is biographical and includes a few comments by Professor Volokh on his former boss, Judge Alex Kozinski.

The interview then continues with a discussion of Packingham v. North Carolina in which Volokh filed an amicus brief at the cert. stage. 

The issue in Packingham is whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

→ Go here to hear Nico Perrino interviewing Professor Volokh on Packingham and other First Amendment matters. It’s well worth the time!

First Amendment Attorney to Receive First Meskis Free-Speech Award

Over at the American Booksellers Association’s website, Chris Finan writes:

“The American Booksellers Association has created a new award to honor those who have provided extraordinary service in defense of the First Amendment rights of booksellers and their customers. The Joyce Meskis Free Speech Award, which is named for the owner of Denver’s Tattered Cover Book Store, will be presented to Michael A. Bamberger, the general counsel of Media Coalition, on May 31 during the Celebration of Bookselling and Author Awards Lunch at BookExpo.”

Michael Bamberger

“Bamberger has represented more than 40 bookstores in two dozen lawsuits challenging censorship laws since 1977, when he joined Media Coalition, which defends the First Amendment rights of businesses that produce and distribute books, magazines, movies, videos, recordings, and video games. He is senior counsel in the New York office of the law firm Dentons.”

“One of his most significant cases was a 1985 challenge to an Indianapolis ordinance that would have forced bookstores to pay damages to victims of sexual assaults who were allegedly harmed by the sale of books or magazines with sexual content. The case went all the way to the U.S. Supreme Court, which upheld lower court rulings that the law was unconstitutional.”

“In the 1980s and 1990s, Bamberger successfully challenged dozens of state statutes that banned the display in bookstores and on bookstore websites of constitutionally protected material that is “harmful to minors.”

“In his most recent case, he represented five Arizona booksellers who sued over a state law that purportedly banned the sale of “revenge porn,” which would have made it illegal to sell any book with a nude image unless the person depicted had granted permission, including books with historical images. The law was struck down as unconstitutional, and the state decided not to appeal.”

“In addition to filing lawsuits, Bamberger has written friend-of-the-court briefs in significant First Amendment cases affecting booksellers, including many that reached the Supreme Court.”

“Meskis said she is delighted that Bamberger is receiving an award. ‘Michael Bamberger has been a true and steady protector of the First Amendment, a stalwart colleague and wise counselor to booksellers across the nation in his many years of service to the American Booksellers Foundation for Free Expression, ABA, and its member stores,’ she said.

“ABA CEO Oren Teicher said it was easy to name the new free speech award. ‘It is entirely appropriate that the award should be named after Joyce, who has spent her entire career fighting for free speech,’ he said.

“ABA recently posted a video of Meskis discussing some of her battles on behalf of free speech and the First Amendment, including her victory in suppressing a search warrant seeking information about the books purchased by a Tattered Cover customer.”

Accepting Applications for Eugene S. Pulliam First Amendment Award

Eugene Pullman (1914-1999)

The Sigma Delta Chi Foundation has announced the Eugene S. Pulliam First Amendment Award to honor a person or persons who have fought to protect and preserve one or more of the rights guaranteed by the First Amendment.

Annually at the Society of Professional Journalists National Convention, the Sigma Delta Chi Foundation will honor an individual, group of individuals or organization with a $10,000 cash award and an engraved crystal. The honoree(s) also will receive transportation (airfare and two-night hotel stay) to the national convention. (Additional travel costs are the responsibility of the award recipient).

Deadline: June 22, 2017

Eligibility Criteria

• Nominations are open to any person, persons or organization in the U.S. or its territories who have worked to protect the basic rights provided by the First Amendment.
• Honorees do not have to be journalists. In fact, the Foundation encourages recognition of those outside the journalism profession for their First Amendment efforts and initiatives, such as, but not limited to, public officials, members of the legal profession, scholars, educators, librarians, students and ordinary citizens.

Nominations

• Nominations for the annual award may be made by anyone, inside or outside of the journalism profession.
• Nominations should include:
  • Completed entry form
  • Three signed letters of nomination or one letter endorsed by three individuals or organizations.
  • Nomination letter should detail the specific efforts taken on behalf of the protection of First Amendment rights; obstacles and difficulties encountered; and impact made as a result of those efforts how they have contributed to the protection of the First Amendment.
  • Supporting materials may consist of published or broadcast materials, documentation of service or lifetime achievement or any appropriate materials.
  • Entries become the property of the Sigma Delta Chi Foundation. They may be republished for general distribution or used to publicize the award.
  • There is no entry fee.

Eugene Smith Pulliam (September 7, 1914 – January 20, 1999) was the publisher of the Indianapolis Star and the Indianapolis News from 1975 until his death.

How to Apply

• Nominations should be submitted as PDF documents. If applicant have Word documents to submit, save them as PDFs before uploading them using the nomination form given in the website.
• Please include the following:
  • Entry Form
  • Nomination Letter(s)
  • Supporting Materials

Eligible Country: United States

→ For more information, please visit Eugene S. Pulliam First Amendment Award.

New & Forthcoming Books

1. David L. Hudson Jr., Freedom of Speech: Documents Decoded (ABC-CLIO, May 5, 2017)
2.  Gavan Titley & Des Freedman, et al, editors, After Charlie Hebdo: Terror, Racism and Free Speech (Zed Books, November 15, 2017)

New & Forthcoming Scholarly Articles 

• Caroline Mala Corbin, A Free Speech Tale of Two County Clerk Refusals, Ohio State Law Journal (forthcoming 2017) Abstract below:

“The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.”

Prof. Caroline Mala Corbin

“When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.”

“Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.”

Additional Articles by Other Authors 

1. Matthew G. Sipe, The Sherman Act and Avoiding Void-for-Vagueness, SSRN (May 16, 2017)
2. Eric M. Ruben, Justifying Perceptions in First and Second Amendment Doctrine, Law and Contemporary Problems (2017)
3. Allison J. Luzwick, Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, Northwestern University Law Review Online (2017)
4. Michael Kagan, The Public Defender’s Pin: Untangling Free Speech Regulation in the Courtroom, Northwestern University Law Review Online (2017)

New & Notable Volokh Posts

1. Eugene Volokh, When you can legally have sex with a 17-year-old, can you be prosecuted for possessing lewd nude photos of her?, The Volokh Conspiracy, May 22, 2017
2. Eugene Volokh, Technically critiquing traffic-light policy without an engineering license => $500 fine (and prospect of more), The Volokh Conspiracy, May 22, 2017
3. Eugene Volokh, Naked TSA Checkpoint Guy loses First Amendment challenge to $500 Fine,  The Volokh Conspiracy, May 19, 2017

Book Review & Excerpts from Floyd Abrams’ Latest Book 

• Roy Gutterman on Floyd Abrams’ Latest Book, Washington Post, May 19, 2017

Excerpts 

• Floyd Abrams, Speech restrictions in the early 1900s, The Volokh Conspiracy, May 23, 2017 (excerpted from The Soul of the First Amendment)
• Floyd Abrams, On Finland, the United States, and the freedom of information and of the press, The Volokh Conspiracy, May 22, 2017 (excerpted from The Soul of the First Amendment)

→ MediaShift Podcast #233: Facebook Falls Short on Fake News, Boosts Local News; Floyd Abrams on ‘Soul of the First Amendment,’ MediaShift, May 19, 2017

News, Editorials, Op-eds & Blog Posts

1. Editorial, Attacking the First Amendment with mask bill is wrong and a waste of legislators’ time, Seattle Times, May 23, 2017
2. ACLU sues South Carolina jail, saying its inmate visitation policy violates the First Amendment, The Post & Courier, May 23, 2017 (Associated Press)
3. Phaedra Haywood, Taos citizens protected by First Amendment in recall push, high court rules, Santa Fe New Mexican, May 23, 2017
4. Ian Millhiser, Neil Gorsuch can’t wait to get his hands on America’s campaign finance laws, Think Progress, May 22, 2017
5. Harry Blain, Left needs to re-embrace First Amendment, ZNet, May 16, 2017

YouTube

1. FCC Commissioner Michael O’Rielly, The Media Institute (May 11, 2017)
2. Justice Stephen Breyer: Guarding Liberty and Free Speech (see also here &  here)
3. Debate on The First Ammendment and Free Speech in Louisiana (re free speech on college campuses)

Today in First Amendment History

• May 24, 1965: Supreme Court Strikes Down Postal Censorship Law (source: Today in Civil Liberties History)

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Garcia v. Bloomberg
2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary) (“For the ninth conference in a row, the justices did not act on the petition for review in Masterpiece, a Colorado baker’s challenge to the state’s public accommodations law.”)

Summary Disposition

1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
2. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Mulligan v. Nichols
2. Alabama Democratic Conference v. Marshall
3. Augsburg Confession
4. Keefe v. Adams
5. Scott v. Georgia
6. Bondi v. Dana’s Railroad Supply
7. Bennie v. Munn
8. Flytenow v. Federal Aviation Administration
9. Armstrong v. Thompson
10. Wolfson v. Concannon
11. Dart v. Backpage.com
12. NCAA v. O’Bannon
13. Mech v. School Board of Palm Beach County
14. Williams v. Coalition for Secular Government 
15. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on May 25, 2017.

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #154: May 31 2017

Last Scheduled FAN, # 152: Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book 

If the government has concrete evidence of an imminent threat they can and should address it, without restricting 1A rights of all. — Oregon ACLU 

 Our hearts are broken, but government censorship is not the answer. We must defend the constitution even when it is uncomfortable.— Mat dos Santos, Oregon ACLU Legal Director

Mayor Ted Wheeler

In the aftermath of a brutal anti-Muslim attack involving the slaying of two men and the serious injury of a third, Portalnd Mayor Ted Wheeler declared that “[o]ur city is in mourning, our community’s anger is real.” Because of that, Wheeler aksed  the federal government to revoke permits for two free speech rallies slated for next week by right-wing groups. The “timing and subject of these events can only exacerbate an already difficult situation,” he stressed. “I am calling on every elected leader in Oregon, every legal agency, every level of law enforcement to stand with me in preventing another tragedy,” he added. (Video of Mayor’s statement here.)

The Organizers 

According to KGW News in Portland, “Joey Gibson is organizing a rally on June 4 and has already received a permit for the event at Shrunk Plaza from the federal government, which controls the downtown park. A second rally is scheduled for June 10 but is not yet permitted.” Both were planned prior to the recent attack.

The event, billed as the “Trump Free Speech Rally,” is, according to its organizers, slated to consist of “speakers exercising their free speech, live music, flags, and an uplifting experience to bring back strength and courage to those who believe in freedom.Thank you Trump for all you have done.” (Video by Joey Gibson here re upcoming rallies.)

  Joey Gibson

The Mayor’s Statement

“‘My main concern is that they are coming to peddle a message of hatred and of bigotry,’ Wheeler told reporters, referring to organizers of the two rallies. ‘They have a First Amendment right to speak, but my pushback on that is that hate speech is not protected by the First Amendment to the United States Constitution.'” (Source: CNN)

Oregon ACLU Response

ACU’s Mat dos Santos

Enter the ACLU.  According to a story by Aaron Mesh writing in the Willamette Week, the “American Civil Liberties Union of Oregon says that Mayor Ted Wheeler’s efforts to keep far-right protesters from holding more rallies in Portland is an unconstitutional violation of the First Amendment.”

V.P. Pence on Campus Speech Codes

Last Sunday, Vice President Mike Pence delivered the commencement address at the University of Notre Dame.

As reported by FIRE’s  Adam Steinbaugh, “Pence’s address included an extended discussion of the state of freedom of expression on America’s college campuses.” Here are some exceprts from the Vice President’s remarks:

You know, if the emanations of free speech were charted on a map like infrared heat signatures, one would hope that universities would be the hottest places. Red and purple with dispute, not dark blue and white frozen into camped orthodoxy and intellectual stasis.

If such a map were to exist, Notre Dame would burn bright with the glow of vibrant discussion. This university is a vanguard of freedom of expression and the free exchange of ideas at a time, sadly, when free speech and civility are waning on campuses across America. [See here re FIRE’s free-speech rating of Notre Dame]

Notre Dame is a campus where deliberation is welcomed, where opposing views are debated, and where every speaker, no matter how unpopular or unfashionable, is afforded the right to air their views in the open for all to hear.

But Notre Dame is an exception, an island in a sea of conformity, so far spared from the noxious wave that seems to be rushing over much of academia. While this institution has maintained an atmosphere of civility and open debate, far too many campuses across America have become characterized by speech codes, safe zones, tone-policing, administration-sanctioned political correctness, all of which amounts to nothing less than suppression of the freedom of speech. 

These all-too-common practices are destructive of learning and the pursuit of knowledge, and they are wholly outside the American tradition. As you, our youth, are the future, and universities the bellwether of thought and culture, I would submit that the increasing intolerance and suppression of the time-honored tradition of free expression on our campuses jeopardizes the liberties of every American. This should not, and must not be met with silence.

Related

• Liam Stack, Notre Dame Students Walk Out of Mike Pence Commencement, New York Times, May 21, 2017
• Karin Agness Lips, Notre Dame Graduates Miss Pence’s Freedom Of Speech Lesson By Walking Out, Forbes, May 23, 2017

→ Greg Lukianoff on NPR re free speech on college campuses (audio here)

Headline: “Second Circuit Rejects First Amendment Claim of Law Firm to Accept Investment from NonLawyers”

Prof. Ruthann Robson

Over at the Constitutional Law Prof Blog, Professor Ruthann Robson writes about a recent Second Circuit opinion in Jacoby & Myers, LLP v. The Presiding Justices of the First, Second, Third & Fourth Depts (March 24th. 2nd Cir., 2017, per Carney, J.). Here is what Professor Robson wrote about the Jacoby case:

[T]he Second Circuit upheld the New York Rules of Professional Responsibility prohibitions of nonlawyers investing in law firms, rejecting the firm’s First Amendment challenges.  The law firm argued it had rights to associate, to access the courts, and to petition the courts.

“Writing for the panel, Judge Susan Carney noted that while cases such as NAACP v. Button (1963) ‘might casually be characterized as reflecting lawyers’ expressive rights in the causes they pursue—when those causes implicate expressive values,’ the Supreme Court has “never held, however, that attorneys have their own First Amendment right as attorneys to associate with current or potential clients, or their own right to petition the government for the redress of their clients’ grievances when the lawyers are acting as advocates for others, and not advocating for their own cause.”

Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers’ own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer’s generic act of pursuing litigation on behalf of any client.

“Of course attorneys have First Amendment rights regarding their professional advertising, but the court distinguished those precedents and further rejected the asserted rights to association, access to the courts, and to petition.  Moreover, the court found that even if such rights were to be recognized as asserted by the law firm, ‘the regulations are supported by a substantial government interest and impose an insubstantial burden on the exercise of any such First Amendment rights.”  Yet the court clearly stated that “rational basis review applies,’ and that the regulations ‘serve New York State’s well‐established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession.'”

“Affirming the district judge, the Second Circuit decision means that the law firm’s challenge has yet to  survive a motion to dismiss.  Yet this is most likely only the beginning of challenges to professional rules regarding lawyer and non-lawyer business relationships.”

9th Circuit holds no 1-A right to political public nudity

The case is Taub v. City & County of San Francisco (9th Cir., May 25, 2017, unpublished opinion).

Claims: (1) Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Francisco’s public nudity ordinance. (2) Plaintiffs’ claim that the public nudity ordinance constitutes an unlawful prior restraint also fails.

(credit: S.F. Examiner)

Held: (1)” [W]e hold that the challenged ordinance is a valid, content- neutral regulation as applied to Plaintiffs’ expressive conduct under United States v. O’Brien (1968). O’Brien is the applicable test here because the ordinance is aimed at ‘the conduct itself, rather than at the message conveyed by that conduct.'” The challenged ordinance satisfies each of the four O’Brien factors.” (2) “Assuming arguendo that Plaintiffs’ nudity at Bay to Breakers and the Haight Street Fair in 2014 was expressive conduct, Plaintiffs were issued citations after their allegedly expressive conduct had already occurred. See Alexander v. United States (1993). Moreover, the procedural requirements imposed on prior restraints do not apply to ‘a content-neutral permit scheme regulating speech in a public forum,’ Thomas v. Chicago Park District (2002), much less to a content-neutral ordinance aimed at conduct.”

→ See also: Eugene Volokh, No First Amendment right to political public nudity — even in San Francisco, The Volokh Conspiracy, May 26, 2017

→ Sam Whiting, Naked truth behind Gypsy Taub’s nude nuptials, S.F. Gate, December 16, 2013

Headline: “Judge Agrees Broadcasters Have First Amendment Right to Refuse Advertisements”

This from Eriq Gardner writing for the Hollywood Reporter: “SiriusXM has just scored a victory that also provides a lesson in this fraught political time where refusing to run an advertisement engenders cries of censorship. According to a California federal judge, not running an ad is an exercise in free speech.”

Judge David O. Carter (credit: Orange County Register)

“[Last] week, the satellite radio broadcaster got U.S. District Court judge David O. Carter to reject a lawsuit from InfoStream Group, which runs the dating sites WhatsYourPrice.com and SeekingMillionaire.com. In California federal court, InfoStream complained how SiriusXM stopped running ads for the websites. SiriusXM deemed the ads as falling short of a revised policy on standards and practices. InfoStream argued the broadcaster’s refusal was “pretextual,” one designed to garner favor from SiriusXM’s preferred customers.”

“In response to the lawsuit, SiriusXM brought a motion to strike the complaint pursuant to California’s anti-SLAPP statute, which was designed to curtail legal efforts chilling First Amendment activity. As a result, Carter had to examine whether a broadcaster’s decision to decline an advertisement was indeed protected activity. . . .”

“Precluding a broadcaster from refusing to sell airtime is inconsistent with the First Amendment protections enjoyed by private broadcasters,” [wrote Judge Carter]

“InfoStream argued that SiriusXM hadn’t identified any ‘speech,’ that it was really ‘conduct’ at issue. Specifically, InfoStream pointed to Sirius’ choice to not enter into additional contracts.”

[Judge] Carter responds that it doesn’t matter because InfoStream’s complaint arises from act in furtherance of SiriusXM’s right of free speech.”

“‘In any event, ‘speech results from what a speaker chooses to say and what he chooses not to say,’ writes the judge, who then quotes a prior case for the proposition that ‘the right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.'” . . .

→ Infostream Group, Inc. v. Sirius XM Radio (C. Dist., CA, May 22, 2017 per Carter, J.)

David Hudson joins FIRE

David Hudson

Robert Shibley, the Executive Director of the Foundation for Individual Rights in Education (FIRE), has just announced that David L. Hudson, Jr. joined FIRE effective June 1, 2017 as a Jackson Legal Fellow.

Hudson served with the Newseum’s First Amendment Center for many years, which is where I first got to know and work with him. He has also taught First Amendment law at Vanderbilt Law School. Hudson is the co-editor of the two-volume, 14,000-plus page, Encyclopedia of the First Amendment (2008).

Hudson is the author or editor of several books on free speech, constitutional law, American history, and even a book on boxing. He has also  published numerous articles, scholarly and popular.  His books include:

1. Editor, Freedom of Speech: Documents Decoded (May 31, 2017)
2. co-editor, Encyclopedia of the Fourth Amendment (2015)
3. The Handy History Answer Book (2013)
4. The First Amendment & Freedom of Speech (2012)
5. Let the Students Speak! A History of the Fight For Free Expression in American Schools (2011)
6. The Handy Law Answer Book (2010)
7. The Rehnquist Court: Understanding Its Impact and Legacy (2006)
8. The Fourteenth Amendment: Equal Protection Under the Law (2002)

Forthcoming Book

• Robert Spencer, The Complete Infidel’s Guide to Free Speech (and Its Enemies) (Regnery Publishing, July 24, 2017)

New & Forthcoming Scholarly Articles

• Michael J. Kelly & David Satola, The Right to Be Forgotten, University of Illinois Law Review (2017)

Prof. Michael J. Kelly

Abstract: The right to be forgotten refers to the ability of individuals to erase, limit, delink, delete or correct personal information on the Internet that is misleading, embarrassing, irrelevant or anachronistic. This legal right was cast into the spotlight by the European Court of Justice decision in the Google Spain case, confirming it as a matter of EU law. This “right,” however, has existed in many forms around the world, usually applying a balance-of-rights analysis between the right to privacy and the right to freedom of expression. The new European version, though, is based on a legal theory of intermediary liability where Internet search engines are now considered “data controllers,” and as such have liability for managing some content online. As it has evolved in Europe, this right has focused attention on key underlying policy considerations, as well as practical difficulties, in implementation under the new European regime. In particular, shifting the burden of creating compliance regimes and supervising important human rights from government to the private sector.

David Satola

Thus, in Europe, the function of balancing rights (privacy versus speech) in the digital context has been “outsourced” to the private sector. Recent experience in Europe under this regime shows that there is no uniform approach across countries. Moreover, different national approaches to the “right” make it almost impossible for multinational entities to comply across jurisdictions. Apart from the data controller threshold, civil-law jurisdictions seem to give greater weight to privacy concerns in striking this balance. Common-law jurisdictions tend to give greater weight to expression. The right to be forgotten is another example of an evolving transatlantic data struggle with potentially serious trade implications. This Article explores the historical and theoretical foundations of the right to be forgotten and assesses practical legal issues including whether North American “free speech” rights are an effective buffer to what is sometimes a very controversial and evolving issue.

• Doris Del Tosto Brogan, Expungement, Defamation and False Light: Is What Happened before What Really Happened or Is There a Chance for a Second Act in America?, Loyola University Chicago Law Journal (forthcoming 2017)

Abstract: Should an individual whose criminal record has been expunged have a cause of action for invasion of privacy, defamation or false light when a media outlet refuses to “unpublish” or correct the original report of her criminal charge? Outside of George Orwell’s world, can a fact that once existed be willed away by a court order, making the once-accurate report false, or “constructively false” and so give rise to a cause of action?

Prof. Doris DelTosto Brogan

The impact of being swept into the vortex of the criminal justice system, even if as the result of only a minor charge, and even if that charge is dismissed, will ricochet throughout an individual’s life doing untold damage. As Michelle Alexander described it, the consequences might include being discriminated against in employment, housing, education or lending. This derails any hope of rehabilitation and contributes to recidivism. In a society that has embraced “frictionless” sharing, and instantaneous dissemination of even the most inconsequential information, employers, lenders, and even nosey neighbors can easily access a criminal charge through public records or through a lingering media report. Even when the record has been expunged, or the charges dismissed, or the individual pardoned, the information remains, if not in the official record, in a wide range of published accounts. Given what appears to be an era of increasing faith in mass criminalization, and reliance on the prison-industrial complex as offering solutions to perceived societal problems, is there any hope of minimizing the damaging collateral consequences of a brush with the law? Is there a chance for a second act in America?

This article addresses the problems faced by individuals who have been harmed by the continued availability of media reports of criminal records that have been expunged, and explores possible remedies.

First, I briefly survey representative state expungement statutes, demonstrating that even the most robust expungement protocols do not accomplish their goal because it is simply impossible to erase the record of an arrest, charge or conviction. Indeed, sometimes expungement does more harm than good by deluding the expungee into relying on the fact that the record has been erased, only to have it discovered by a prospective employer, lender or other third party who then concludes the expungee is both an ex con and a liar.

I then consider whether it is possible to prevent access to criminal records or to control publication of such information in the first instance. I conclude that this is impossible because of important and appropriate constitutional guarantees protecting the right to access and the right to publish information concerning matters of public interest, which criminal proceedings surely are.

If it is not possible to prevent access to and publication of the information, can tort causes of action provide remedies, and perhaps caution restraint on those who would publish criminal records? Again the answer is no. Privacy claims are precluded by the public interest in criminal proceedings. Defamation and false light claims are foreclosed because the potential plaintiff cannot prove falsity. The Supreme Court would not condone undermining New York Times v. Sullivan by permitting the fiction of constructive falsity to meet this constitutionally required element. And because of the impact of the single publication rule, the notion of construing falsity from the effect of subsequent circumstances will not work. Falsity is the constitutional fulcrum for defamation and false light, and falsity cannot be proven.

Similar constitutional constraints foreclose the option of passing laws that would require media outlets to publish corrections or addendums explaining that the charges were dismissed or expunged or that the individual was pardoned. The Supreme Court has correctly concluded that government-forced speech violates the First Amendment.

Thus, the law offers no real solution, and this is as it should be. In light of this, I propose that media outlets adopt policies under which, in certain well-defined circumstances, they would voluntarily publish addendums explaining that the charge reported has been expunged or dismissed or the individual has been pardoned. Journalists do adhere to voluntary ethical guidelines. The modest policy I describe is based on guidelines already followed by some media outlets. It would be voluntary, and thus would not entangle the government in the editorial process. It would apply only to online outlets both because the ready availability of these reports make them the source of the greatest harm, and because the burden on an online outlet is minimal. Finally, this would be limited to verifiable expungements, dismissals or pardons, and so would not require independent investigation by the media outlets.

1. WHAT’S THAT SIGN SAY?: A BRIEF EXAMINATION OF THE FOUR OPINIONS IN REED V. TOWN OF GILBERT
2. THE FUTURE OF CYBERBULLYING LEGISLATION IN NORTH CAROLINA
3. THE TEACHER FOLLOWED ME HOME: BELL AND A SCHOOL’S CONTROL OF STUDENT SPEECH OUTSIDE THE CLASSROOM
4. EXPOSED: HOW MUGSHOTS EXPANDED GOVERNMENT SECRECY

→ See also Symposium: The First Amenmdent Legacy of Justice Antonin Scalia

News, Editorials, Op-eds & Blog Posts 

1. Alec Cowan, The University of Oregon’s year in free speech, Daily Emerald, May 28, 2017
2. Brendan Pringle, Conservative millennials are the Free Speech Movement’s only hope, Red Alert, May 28, 2017
3. Matthew Baan, Huffington Post Apparently Doesn’t Understand How The First Amendment Works, MEDIAite, May 26, 2017
4. Brandon Morse, Tucker Carlson verbally pummels atheist activist with the First Amendment, The Blaze, May 26, 2017
5. Rebecca Savransky, Sasse: Mont. Republican doesn’t understand First Amendment, The Hill, May 25, 2017
6.  Antonie Boessenkool, UCLA students say ‘free speech is under attack’ and a conservative professor is the target, Los Angeles Daily News, May 21, 2017

Today in First Amendment History 

Arthur Miller Testifying to House Subcommittee, June 21, 1956.(Bettmann/Corbis)

May 31, 1957: “The noted American playwright Arthur Miller had appeared before the House Committee on Un-American Activities (HUAC) on June 21, 1956, and refused to answer questions about his political affiliations on First Amendment grounds. Unlike many other HUAC witnesses, he claimed the right not to answer question under the First Amendment rather than the Fifth Amendment. It was a particularly courageous stand because, at that time, there was no established First Amendment protection against legislative inquiries into one’s political beliefs and associations. On this day, Miller was found guilty of contempt of Congress, denied a passpor,t and sentenced to a $500 fine or 30 days in jail. He never spent any time in jail, and his conviction was reversed on August 7, 1958.”

“Contempt of Congress indictments became a heavy weapon against alleged subversives during the Cold War. While it had rarely been used before World War II, HUAC issued 21 contempt citations in 1946, 14 in 1947, and 56 in 1950. All other House Committees in those years issued a total of only 6 contempt citations.”

“Miller had earlier written the play The Crucible (January 22, 1953), equating the anti-Communist hysteria of the Cold War with the infamous Salem Witch trials (see June 10, 1692). Miller’s play Death of a Salesman is widely regarded as one of the greatest American plays.” [Source: Today in Civil Liberties History]

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. National Institute of Family and Life Advocates v. Becerra
2. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
3. Livingwell Medical Clinic, Inc. v. Becerra
4. Garcia v. Bloomberg
5. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
2. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Mulligan v. Nichols
2. Alabama Democratic Conference v. Marshall
3. Augsburg Confession
4. Keefe v. Adams
5. Scott v. Georgia
6. Bondi v. Dana’s Railroad Supply
7. Bennie v. Munn
8. Flytenow v. Federal Aviation Administration
9. Armstrong v. Thompson
10. Wolfson v. Concannon
11. Dart v. Backpage.com
12. NCAA v. O’Bannon
13. Mech v. School Board of Palm Beach County
14. Williams v. Coalition for Secular Government 
15. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on June 8, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #155: June 7, 2017

Last Scheduled FAN, # 153: POLICYed & Richard Epstein Bring Free-Speech Lessons to Digital Media

I am delighted to return to Concurring Opinions as a guest contributor.  Many thanks to Solangel for her kind invitation.

My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided.  Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment.  The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment.  This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision.

One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy.  Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland.

In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race.  I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American.  If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims.  I will address in my next post where the agenda may have led the court.

First, some background.  In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died.  Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care.  According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father.  The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children.

In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition.  I argued that recognition should not arise solely from Stanley’s biological connection to the children, however.  Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children.

My concurrence reflects two strands of feminist thought.  First, many feminists emphasize that caring relationships should count for more in the law.  Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making.  In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful, particularly relationships of support and care.  Understanding law in the context of people’s lives, their “stories,” is equally essential.  The Stanley Court did little of either.  Instead, the Court came to a broad, abstract conclusion that all people who claim parenthood through a blood relationship, marriage or adoption are the same, regardless of what any of those people have demonstrated in terms of connection with the child.

I am not arguing that a feminist Justice would have dissented; I agree with the outcome of the case.  The record, as I will discuss, demonstrates that Peter Stanley was involved with his children, shared a household with them, and was concerned for their future.  His marital status should not be cause for depriving him of parental status; only a finding of unfitness should justify that deprivation.

Where the Court and I part company is on the question of why.  The Court justifies its rule on the basis that the father has a right to be treated the same as a mother.  In my view, the parental rights of any person, whether father or mother, should turn on whether the person has a relationship with the child that demonstrates a level of commitment to the child’s care.  Where a person with a formal claim to parenthood, whether through birth, marriage or adoption, has never exercised any commitment to the child’s care, the state should be allowed to disregard that person’s claim to parenthood.

The Court’s focus on equality strikes me as not coincidental, but I’m not sure it was solely gender equality that the justices were thinking about.  In my view, at least some of the justices saw Stanley as part of the Court’s racial justice jurisprudence.  In light of this possibility, it also seems important that members of the Court probably thought Peter Stanley and his family were African-American, as I’ll discuss later.

The case is a good example of how claims about racial justice and claims about gender justice may lead to confounding results if not understood and examined contextually.  Empowering Peter Stanley to resist state intervention into his family because of his biological attachment to the children has been interpreted over the years since as empowering all unmarried fathers to be recognized as parents.  Once recognized as a parent, these men have the opportunity to restrict the autonomy of the mothers of their children in parenting decisions such as adoption and custody.  That outcome is inconsistent with preferring involved, committed and caring parents, whether male or female, over others whose connection to a child is solely formal or biological. Ironically, that outcome is hostile, in many cases, to respecting women’s equality.  The risks may be greatest for women of color.

My conclusion is that a relationship-based approach to Stanley’s claims would not have led to a different result for Peter Stanley.  Because a relationship-based approach adds context to the question of who should be recognized as a parent, further, it would help to counter the empowerment of the uninvolved parent that has been the negative legacy of Stanley.

To understand Stanley, it helps to know something about the story of the Stanley family.  The record, however, is scanty.  Here’s what we know from the record and additional research.  Peter and Joan had a long-term relationship and may have believed they were married, although no documentation was ever uncovered.  All accounts show them living together during the last few years before Joan’s death.  For the 17 or so years before that, they lived together continuously or intermittently, depending on whose account is accepted.  Their oldest child was found to be neglected at some point before her mother died.  The two younger children were born in the last few years before Joan’s death, and they were living with Joan and Peter when she died.  We also know that Social Security survivor benefits were paid for the three children, which seems to mean that Joan Stanley earned a salary for some period of time.  Money was tight, at least after Joan’s death.

Here’s some of what the Court’s record does not reveal:  whether Joan or Peter would identify themselves as African-American or European-American, what they did for a living, whether both provided economically to the family, what led to Joan’s early demise, whether Peter cared for her during her illness, and what the oldest child experienced before or after her mother’s death.

In my next post, I’ll discuss why I think members of the Court may have regarded the Stanleys as African-American and what that may have meant to them.

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.

If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.

When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.

Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.

As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.

How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.

First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.

Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.

That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.

You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.

The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision.  The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.

Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation.  After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.

If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.

Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.

Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.

The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.

In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.

In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference.  In this last post, I address one aspect of the negative legacy of Stanley:  the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception.

Let me give you a modern example to chew on.  This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago.  During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care.  A number of states have limited those rights where the conception occurred as the result of a rape, but not all.  Even where the rights have been limited, however, the negative legacy of Stanley lingers.  I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt.

Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother.  Under the proposed legislation, the paternal rights of some of these men could be terminated.  If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child.

Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature.  The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House.  The House bill went further in terms of allowing the termination of paternal rights.  It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children.  I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist.

Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother.  In the absence of a conviction, the man’s paternal rights can be terminated if the woman proves by clear and convincing evidence that nonconsensual sexual occurred.  Even though Maryland has no marital rape exemption, the House bill also provides that a husband’s paternal rights can be terminated only if he has been convicted of nonconsensual sexual conduct.

In addition to proof of nonconsensual sexual conduct, termination of paternal rights requires a finding, based on clear and convincing evidence, that termination is in the best interest of the child.

A finding of termination eliminates the man’s right to custody, guardianship, access to and visitation with the child.  It also terminates the man’s child support obligation.  If the man is indigent, he is entitled to have counsel provided for him.

In terms of Stanley, many things are interesting about the proposed bill in addition to the fact that it followed eight previous failed attempts.

First, the bill assumes that all biological fathers are the same, just as the Stanley court assumed, and that all of them have the same rights as mothers to be recognized as parents.  In fact, after Stanley, the Court came to a more nuanced place about the rights of biological fathers to be recognized as legal fathers.  Biology, according to the Court in Lehr v. Robertson , offers a man an opportunity to develop a relationship with a child that is shared by no other man, but biology is not enough.  If a man does not seize the opportunity, the Constitution does not require a state to recognize the man’s claim to legal fatherhood.  A rapist who had no further contact with mother and child (or failed to file postcard with a state registry, as provided by New York law at the time of Lehr), therefore, could be constitutionally denied all rights to parenthood.

Second, the bill prohibits termination unless the court finds by clear and convincing evidence that termination is in the best interest of the child.  If the bill also denied paternal rights to men who fail the Lehr test, this provision would apply only to men who had some relationship with the child or who, at the very least, had admitted paternity prior to an action for termination.  But the bill doesn’t do that.  Instead, it follows the Stanley path and treats all men alike.  As a result, the bill allows for a scenario where a man who has never seen or done anything for the child may get to keep his paternal rights because the mother does not have the resources to mount a convincing case against him about the child’s best interest.

But it gets worse.  Because the bill follows Stanley’s lead of treating all men alike, regardless of prior involvement with the child, it puts impoverished women in a particularly bad position.  Take, for example, the case of a mother who needs public benefits such as cash assistance or Medicaid in order to support her child.  Recipients of these and some other public benefits are required to assign their rights to child support to the state and to cooperate in the establishment of paternity and the order of support.  If the mother persuades the state that the child is the result of a rape, she may get a waiver, but waivers are hard to come by.

Once the paternity and child support suit is brought by the state under the assignment, the father can counterclaim for custody and visitation.  No lawyer represents the mother in such a case; the lawyer who brings the original suit represents the state under the assignment, not the mother.  If the mother tries to defend against the custody and visitation claim on the basis that the child is the result of a rape, the father, if indigent, would be entitled to a lawyer paid for by the state under the House bill.  No lawyer would be provided for the mother.

Third, the bill relieves the man whose rights are terminated of the duty to pay child support.  The bill says, in effect, that child support is a quid pro quo for rights with respect to the child.  That is contrary to the usual understanding that child support is an obligation owed by people who participate in the creation of a child.  In theory, at least, child support is about the child’s well-being, not the father’s sense of entitlement or grievance.

Stanley provides something of an explanation for the anomaly.  Remember that the Stanley court requires the state to respect paternal rights to the same extent that it respects maternal rights.  In the 1970s, when feminist claims were only beginning to be heard, maternal roles and paternal roles were openly recognized as distinct.  Fathers were responsible for financial support of their children, and mothers were responsible for physical and emotional support.  Many states, including Maryland, did not place an equivalent duty of child support on mothers and fathers until five years after Stanley in a decision based in the state’s equal rights amendment.

Fathers “earned” their right to a place in a family by satisfying the financial duty.  If a father satisfied his duty, he “should” be empowered to do what fathers do in families.  The tradition makes sense of a decision to relieve a man who is deprived of the usual power to make decisions about his child from the usual duty of the father to provide financial support.  It makes no sense, however, once one rejects the traditional approach of differentiated male and female family roles or if one puts the needs of the child over a parent’s sense of entitlement.  Including this provision today, 45 years after Stanley and long after gendered roles in the provision of financial support have been rejected as a form of sex discrimination, is indefensible.

The House bill differs from Stanley in one key respect.  It provides greater protection for the married father to keep his paternal rights than it provides for the unmarried father.  The married father’s rights can be terminated only if he is convicted of nonconsensual sexual conduct; the unmarried father’s rights can be terminated upon conviction or upon clear and convincing evidence that he committed nonconsensual sexual conduct.  Of course, if Peter Stanley had been married to Joan Stanley, the state could have terminated his parental rights only upon a showing of neglect or abuse, so the case would never have gone to the Supreme Court.  The Court’s decision placed the unmarried father, Peter Stanley, in the same position he would have enjoyed had he been married to Joan Stanley.

Why is marriage a privileged status in the House bill, even though Stanley points to the opposite path?  Perhaps the answer is that the legislators want to encourage marriage.  If that’s the case, the consequence is likely to be to also privilege European-American fathers, because marriage rates, while lower now than in the 1970s, still tend to be higher among European-Americans than among African-Americans.  An equally likely motivation is a lingering allegiance among legislators to the traditional claim that a husband can’t rape his wife, no matter what the criminal law now says.

The bill is, at best, a crabbed approach to the interests of a woman who was raped, gave birth to the child and wants to raise the child.  Nonetheless, many of the bill’s features are predictable, given what the Court did in Stanley 45 years ago.  If all men and women are the same, regardless of their engagement in caring for a child, then a child should rarely be deprived of an opportunity to have a “father,” even if the “father” raped the child’s mother.  And if mothers need to be under the control of a man, a rapist might be as good as any other man.

What would a better bill look like?  A better bill would respect and valorize all parents who commit to caring for a child and avoid empowering people who assert rights without entering into relationships.  A better bill would focus on and seek better outcomes for parents who lack privilege.  A better bill would not tread on the autonomy of a committed parent because the parent is female.

I think a better bill would differ from the failed House bill in at least six ways.  Here’s my list:

1. Paternal rights are recognized only where the biological, adoptive or marital father demonstrates a history of care for and connection with the child or otherwise satisfies the Lehr Mere biological or marital connection is not enough.  Therefore, no termination is required where the man who committed the nonconsensual sexual conduct has not satisfied Lehr, because no paternal relationship is recognized in the first place.
2. Where a man demonstrates his entitlement to recognition as a father because he has satisfied Lehr, termination is allowed where the mother demonstrates that the child is the result of nonconsensual sexual conduct, either through evidence of the man’s conviction or through clear and convincing evidence of the conduct. No discretion is allowed for a court to deny termination, because the mother should not be forced to have a continuing relationship with a man who committed a violent act against her as extreme as first or second degree rape or incest.  If the mother decides to allow the man to have a relationship with the child, the mother’s decision provides no basis for a court to order the mother to continue the relationship.
3. The termination proceeding follows the same procedures as are used in other termination of parental rights cases.
4. The termination of parental rights which is ordered because of rape does not relieve the biological father of the duty to provide child support.
5. Married and non-married fathers are accorded the same protections from termination.
6. The duty to assign child support and to cooperate in the establishment of paternity and support is eliminated from public benefits law unless the state proves in a judicial proceeding that a mother’s claim of rape is not sustainable. The mother is entitled to have counsel provided in such a proceeding.

A bill that incorporates at least these six features, it seems to me, starts to address the negative legacy of Stanley.  Such a bill would provide sufficient procedural protections to men who are wrongfully accused of nonconsensual sexual conduct so long as they have also demonstrated a commitment to caring for a child.  At the same time, if conception occurred without the mother’s consent, the man’s claim of parenthood could be challenged with a greater likelihood of success, particularly if he has never made a commitment to the child’s care.  The mother’s opportunity to care for the child is better protected against unwarranted attacks by a man using judicial proceedings without good cause.  Most importantly, a woman who has made the commitment to care and raise a child regardless of the pain she suffered from the assault will have greater autonomy.  The law will not indulge in an assumption that a man with a biological or a marital tie to a child is entitled to the same or even greater authority than the mother has in terms of deciding what is best for the child.  Further, the mother will not have to make a choice between her parental autonomy and financial security for the child, if that security depends in any way on support from the biological father or from the state.

I’m hoping that year ten will prove to be the magic year for Maryland to come to terms with Stanley’s negative legacy and to treat rapists as they deserve when it comes to fatherhood.  I look forward to hearing from readers of Concurring Opinions about my views.

Professor Joel Gora

When it comes to First Amendment symposia, Brooklyn Law School seems to be the go-to-venue, at least judging from the latest issue of the Law School’s Jounral of Law and Policy. The symposium was done under the watchful eye of Professor Joel Gora, who authored the Introduction — The Past, Present and Future of Free Speech. In that introuction Gora writes:

The contents of the symposium are set out below.

In a June 6, 2017 letter to President Donald Trump, lawyers for the Knigth First Institute at Columbia University called on the President to unblock their clients’ accounts.  The Institute represents two Twitter users who while using @RealDonaldTrump were blocked after they posted tweets critical of Trump.

Below are some excerpts from the Institute’s letter, which was signed by Jameel Jaffer, Katie Fallow and Alex Abodo:

Accordingly, the Institite called on President Trump or his aides to “immediately unclock our clients’ accounts and the accounts of others who have been blocked because of their views.”

Professor Volokh Responds

→ Eugene Volokh, Is @RealDonaldTrump violating the First Amendment by blocking some Twitter users?, The Volokh Conspiracy, June 6, 2017

Did the President violate the Institite’s clients’ First Amendment rights?  “I think that’s not quite so,” replied Eugene Volokh, “though the matter is not open and shut.”

Here, in abreviated form, is why Professor Volokh says so by way of his “tentative thinking on the matter”:

1. “[M]y inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views — apparently in his own words and with his own typos — rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment. And I think that’s so even if he gets some help from government-employed staff in running it.”
2. “But what if I’m mistaken, and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment? . . . But even if he reads a few of his notifications, there’s no First Amendment problem with his refusing to read those that come from particular people. Speakers ‘have no constitutional right to force the government to listen to their views.'”
3. ” Another effect is that the blocked users can’t follow @RealDonaldTrump, and can’t view or search his messages while logged on. But all they need to do is log off and go to http://twitter.com/RealDonaldTrump, and they’ll see them all. I do think that the First Amendment bans viewpoint-based interference with people’s ability to acquire information and not just with their ability to convey it . . . .”
4. “If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.”

Invitation

I have invited Jameel Jaffer to respond to Professor Volokh’s critique and will happily post his reponse.

Espionage Act tapped to prosecute intelligence contractor

Reality Leigh Winner

This from Charles Savage writing in the New York Times: “An intelligence contractor was charged with sending a classified report about Russia’s interference in the 2016 election to the news media, the Justice Department announced Monday, the first criminal leak case under President Trump.”

“The case showed the department’s willingness to crack down on leaks, as Mr. Trump has called for in complaining that they are undermining his administration. His grievances have contributed to a sometimes tense relationship with the intelligence agencies he now oversees.”

“The Justice Department announced the case against the contractor, Reality Leigh Winner, 25, about an hour after the national-security news outlet The Intercept published the apparent document, a May 5 intelligence report from the National Security Agency. . . .”

“It was not immediately clear who is serving as the defense lawyer for Ms. Winner, who has been charged under the Espionage Act.”

Related

→ Erik Wemple, Did the Intercept bungle the NSA leak?, Washington Post, June 6, 2017

Coming Next Week: Special FAN post re 100th Anniversary of Espionage Act 

Next Thursday, June 15th, I will post a special issue of FAN to mark the 100th anniversary of the Espionage Act of 1917. The following individuals will offer comments on the Act and its possible use in modern times:

1. Derek Bambauer
2. Bruce Brown
3. Erwin Chemerinsky
4. Geoffrey Stone, and
5. Stephen Vladeck

→  The post will also contain a package of resource materails prepared by Jackie Farmer and Robert Shibley who oversee, with me, FIRE’s online First Amendment Library.

Jeffrey Herbst

“Free speech faces many challenges at colleges and universities these days, but none greater than the growing skepticism of some students — especially those who feel particularly marginalized and disempowered in our society. Vocal elements of these groups increasingly question what the Supreme Court has celebrated as the country’s profound commitment to “uninhibited, robust and wide-open” public discourse.”

So write Jeffrey Herbst and Geoffrey Stone in an article appearing in the Chronicle of Higher Education. Later on, they add:

Professor Geoffery Stone

“Wanting to censor those whose views one finds odious and offensive is understandable. Actually silencing them is dangerous, though, because censorship is a two-way street. It is an illusion for minority groups to believe that they can censor the speech of others today without having their own expression muzzled tomorrow.”

“Although censoring others may appear to be a courageous sign of strength,” they stress, “it is actually an indication of weakness. Those who resort to censorship do so in no small part because they lack confidence that they can compete effectively with the ideas of their opposition. Allowing others to speak and then challenging them in a forthright and open manner with more persuasive ideas is the way to win in the long-term. It was for this reason that Dr. King in the speech later known as ‘I’ve Been to the Mountaintop’ said, ‘We aren’t engaged in any negative protest and in any negative arguments with anybody.’ Rather, he said, ‘we are going on.’ . . .”

Abrams big draw in NYC 

Dan & Floyd Abrams

This past Monday, some 900 people came out to the Temple Emanu-El Streicker Center to hear Floyd Abrams speak about his latest book, The Soul of the First Amendment.

There were traces of familial magic in the air as his daughter, Judge Ronnie Abrams, introduced the event with his son, Dan Abrams, interviewing their father.

It was an enagaging interview — with Father Abrams being both nuanced and witty — followed by questions from the audience. Here are a few excerpts:

On government leaks

• When  asked about his views on the the Trump Justice Deartment’s prosececution of an intelligence contractor charged with violating the Espionage Act for leaking a classified report, Abrams prefacced his reamrks by noting that “[m]ore prosecutions of leakers occurred under Presidents Obama than all our presidents altogether.” That said, he added that certain government leakers might be seen as “patriots” even though they might “be legally prosecuted.”
• Re Edward Snowden: “He provided a genuine public service in revealing the degree of surveillance that existed in this country.” But Snowden’s disclosures on our gathering of surveillance abroad “was wrong and ought not be admired; it is worthy of condemnation.”
• Re Julian Assange:,”I wouldn’t be surprised if he were prosecuted by the Trump Administration. . . . .  Taken as a whole, he has done more harm than he good. Even so, a prosecution of him under the Espionage Act would be very dangerous for the press and the public, and I certainly hope it does not occur.”

On President Trump & the Media

Abrams & Karen Gantz

President Trump seems “unwilling to accept the role of the press as a check on government power.”

On Kathy Griffin (in response to a question from the audience)

What she did was “really disgraceful and shameful.” That said, Abrams nonetheless hoped that would not be the end of her career. “I don’t think we should have capital punishment for entertainers who go over the line from time to time, though we can criticize them.”

→ Afterwards, Karen Gantz, Abrams’ literary agent, hosted a party at her nearby home. Among others, Vince Blasi, Stephen Solomon, and Henry Hoberman were there as glasses were raised in the author’s honor.

Scholarship — Carherine Fisk: “Is it Time for a Free Speech Fight?” 

• Catherine Fisk, Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor, Berkeley Journal of Employment and Labor Law (forthcoming 2018). Here is the Abstract:

The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments.

Professor Catherine Fisk

First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement.

Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a FirstAmendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940.

Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Today in First Amendment History: Cohen v. California (1971) 

• June 7, 1971:  “Fuck the Draft” Ruled Protected Speech

“In the case of Cohen v. California, Robert Paul Cohen had been convicted of walking through the Los Angeles County Courthouse, on April 26, 1968, with the words “Fuck the Draft” on the back of his jacket as an anti-Vietnam War protest. The Supreme Court on this day overturned the conviction as a violation of freedom of speech. Justice John Marshall Harlan, II’s opinion is notable for the weight he gave to the emotional aspects of the speech in question as just as important as in communicating the speaker’s message.”

Justice Harlan: “This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance…The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity . . . Much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.”

Source: Today in Civil Liberties History 

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. Harris v. Cooper 
2. National Institute of Family and Life Advocates v. Becerra
3. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
4. Livingwell Medical Clinic, Inc. v. Becerra
5. Garcia v. Bloomberg
6. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
2. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Mulligan v. Nichols
2. Alabama Democratic Conference v. Marshall
3. Augsburg Confession
4. Keefe v. Adams
5. Scott v. Georgia
6. Bondi v. Dana’s Railroad Supply
7. Bennie v. Munn
8. Flytenow v. Federal Aviation Administration
9. Armstrong v. Thompson
10. Wolfson v. Concannon
11. Dart v. Backpage.com
12. NCAA v. O’Bannon
13. Mech v. School Board of Palm Beach County
14. Williams v. Coalition for Secular Government 
15. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Pending

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s next Conference is on June 8, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #156: June 14, 2017

Last Scheduled FAN, #154: Oregon ACLU: Attempt to Quash Alt-Right Rallies Would Violate First Amendment

There are citizens of the United States . . . born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. . . . 

I urge you to enact . . . laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. — Woodrow Wilson, State of the Union Address, December 7, 1915

[T]he newspaper or individual who criticizes or points out defects in policies . . . with the honest purpose of promoting remedial action and warning against danger is not a public enemy. — Editorial, New York Times,  April 13, 1917

Today marks the 100th anniversary of the Espionage Act of 1917 (18 U.S. Code Chapter 37). In light of that, I have collected some background materials about the Act followed by several original comentaries on it, which follow the introductory materials below.

Origins

• Assistant Attorney General Charles Warren drafts a bill “for suppressing or punishing disloyal and hostile acts and utterances.”
• Bill introduced in the House as H.R. 291
• Bill passes in the House on May 4, 1917 (261–109)
• Bill passes the Senate on May 14, 1917 (80–8)
• President Woodrow Wilson signs bill into law on June 15, 1917.

August 1917 cover of Masses Magazine

→ First Amendment Online Library Timeline of Espionage Act & Related Acts

→ The Masses cases:

• Masses Publishing Co. v. Patten, 244 F. 535 (S.Dist.N.Y., 1917) (per Hand, J.)
• ruling re stay of appealed order, 245 F. 102 (per Hough, J., 1917), and
• Circuit Court ruling reversing District Court,  246 F. 24 (2nd Cir., 1917) (per Rogers, J. for the majority  with Ward, J. concurring)

→ FAN 148, Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Controversial Provisions of the Act: “The Espionage Act put into law a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment. The law also presented the penalty of levying fines of up to $10,000 for those convicted. The law also gave additional powers to the post office. Specifically, the law allowed the Postmaster General to confiscate any mail that might be deemed seditious or treasonable.” (source: This Day in History)

Domestic Issues of Concern: “There were quite a number of concerns the Wilson administration had about certain groups that were in opposition to the war. Public criticism of the war was definitely a major concern of the government. Since a significant number of troops would be needed to carry out the war effort, a draft was imposed. Among the concerns the government had was the notion that constant criticism would make recruitment and even conscription difficult.” (source: This Day in History)

Enforcement: “Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.” (Source: Totally History)

→ See also David Greene, As the Espionage Act Turns 100, We Condemn Threats Against Wikileaks, Electronic Frontier Foundation, June 14, 2017

Historical Resources

→ Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harvard Law Review 932 (1919)

→ Karl N. Llewellyn, Free Speech in Time of Peace, 29 Yale Law Journal 337 (1920) (student comment)

→ Walter Nelles, In the Wake of the Espionage Act, The Nation (December 15, 1920)

• Geoffrey Stone, Learned Hand and the Espionage Act of 1917: A Mystery Unraveled, 70 University of Chicago Law Review 335 (2003)
• Geoffrey Stone, Perilous Times: Free Speech in Wartime (W.W. Norton, 2004), pp. 146-153, passim
• Stephen Feldman, Free Expression & Democracy in America: A History (University of Chicago Press, 2008), pp. 241-245 passim

Masthead from Masses magazine

Commentaries by Derik Bambauer, Erwin Chemerinsky, Geoffrey Stone & Stepehen Vladeck 

Backwards and Forwards

by Derek E. Bambauer

Many thanks to Ron Collins for the invitation to reflect on the centennial of the Espionage Act!

I want to argue that the Espionage Act is not only problematic on its own terms, but that it has paved the way for a newer set of worrisome statutes and dubious cases. These newer measures, like the Act itself, respond to an exaggerated sense of danger from internal and external threats. Courts and lawmakers alike have largely engaged in ahistorical analysis: they have failed to learn the lessons from the past. They underrated the perceived risk of subversive political speech in wartime in the early twentieth century, and they fail to question whether terrorism is a sufficiently existential threat today to warrant impingements on speech. I conclude that there are two possible responses, neither particularly promising.

To give the problems with the Espionage Act and its progency some currency, consider the current fight against the terror group ISIS in the Middle East. ISIS has taken a surprising amount of territory, and has become infamous for its horrific treatment of captives. There have been domestic attacks by individuals or small groups who claimed an association with or allegiance to ISIS. However, while these attacks are horrifying, even significant terror attacks are not existential threats to the United States.

But the perceived threat from ISIS has generated a disproportionate response, and one that frequently targets speech. For example, the assistant attorney general for national security said that people who are “proliferating ISIS social media” could be prosecuted under 18 U.S.C. 2339A (the material support statute). His contention was that disseminating ISIS’s point of view counts as providing “technical expertise” to a terrorist group. In 2012, the government successfully prosecuted Tarek Mehanna as a terrorist, in part because he translated al Qaeda writings and videos into English. The First Circuit Court of Appeals, in affirming his conviction, called terrorism the “modern-day equivalent of the bubonic plague” and an “existential threat” – an embarrassing example of hyberbole. And the Supreme Court has failed to rein in restrictions on speech justified as necessary for the war on terror. In Holder v. Humanitarian Law Project, the Supreme Court rejected a First Amendment challenge to the material support statute, highlighting the fact that completely independent political advocacy is not covered by the law’s prohibitions. (The challenge, of course, is determining when someone is “completely independent.”)

The material support statute is also problematic in that it defers decisions about what content should be criminalized to the executive branch. The State Department is empowered to determine which entities constitute terrorist groups. Coordinated political advocacy with groups on the list is a crime; advocacy for violent but not listed groups is safe. One person’s terrorist is another’s freedom fighter. There’s also the risk of one-way advocacy: if terrorist group calls for people to advocate on its behalf, and someone does so, does that count as coordination? And, of course, the Justice Department has charged Edward Snowden under the Espionage Act itself, and continues to investigate whether to prosecute WikiLeaks and Julian Assange under it.

These efforts seem similar to prosecutions in the early twentieth century under the Espionage Act that ultimately elucidated the weak form of the “clear and present danger” test. For example, Charles Schenck was convicted for distributing pamphlets for American Socialist Party that read “Assert your rights – do not submit to intimidation” – hardly stuff to stir the blood. The Socialist Eugene Debs was convicted for giving a speech titled “Socialism is the Answer.” And Jacob Abrams was an anarchist convicted for his criticism of the U.S. decision to defend Russia against the Bolsheviks.

There were similar trends during the Cold War. The Communist Eugene Dennis received his conviction for knowingly advocating the overthrow of the U.S. government by force. The Supreme Court called the Communist Party a “permanently organized, well-funded, semi-secret organization.” These cases demonstrate at least two parallels to current events. The first is a conception of political (largely foreign) enemies as an existential threat. The second is that the magnitude of this threat justifies restrictions on political speech and advocacy that would ordinarily be at the heart of First Amendment protection.

I can see two tentative responses to these problems, one pessimistic and one mildly optimistic.

The pessimistic channels Geoffrey Stone: we must accept as inevitable that there will be limits on political advocacy, especially in wartime, even if that war is a long twilight struggle rather than a declared conflict. This has the interesting side effect of making First Amendment less exceptional – there turns out to be an implicit balancing test even with “core” political speech. It might also be a useful descriptive exercise to examine the pendulum swing of First Amendment liberties – is it temporal in nature, or does it relate primarily to subject matter?

The optimistic idea is to draw upon the historical parallels elaborated above: neither socialists nor Communists proved an existential threat to U.S. politics and institutions, despite the heated fears of the moment. This requires more work on our collective part: we have to hold the government to its burden when it seeks to restrict speech, first by questioning the characterization of information as a threat, and second by carefully policing the line between conduct and speech when regulations are proposed or promulgated. That will require political courage – always in short supply – and legal analysis grounded in history.

The Espionage Act ought to teach us that these are vital assets in our self-governance, but it’s not clear we have yet learned the lesson.

A Loaded Gun

By Erwin Chemerinsky

The Espionage Act of 1917 is a loaded gun waiting for the federal government to use it to punish speech. Indeed, throughout its history, it has been used to punish speech that should be deemed constitutionally protected. I especially worry that the Obama administration has set a precedent for the Trump administration, which has shown great hostility to the press. Since the enactment of the Espionage Act of 1917, twelve prosecutions have been brought under it for disclosures of information and nine of those were during the Obama administration.

The Espionage Act, by its very terms, is directed at restricting speech. The law makes it a crime to convey information with the intent to interfere with the operation of the armed forces or to promote the success of its enemies. The Act also makes it a federal crime to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. Yet another provision gives the Postmaster General the authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.

The Act has been used to punish speech. Most famously, it was used to punish speech during World War I that the First Amendment never should have allowed to be punished. In Schenck v. United States, the Court considered the conviction of two individuals – Charles Schenck and Elizabeth Baer – who were prosecuted for circulating a leaflet arguing that the draft violated the Thirteenth Amendment as a form of involuntary servitude. The leaflet was titled, “Long Live the Constitution of the United States.”   It said, ‘‘Do not submit to intimidation,’’ and ‘‘Assert Your Rights,’’ but did not expressly urge violation of any law; it advocated repealing the draft law and encouraged people to write to their representatives in Congress to do so.

There was not any evidence that their leaflet had any effect in causing a single person to resist the draft. Nonetheless, they were prosecuted and convicted and sentenced to jail for violating the 1917 Act. The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upheld their convictions and sentences; he dismissed as irrelevant that the leaflet had no effect.

A week after Schenck was announced, the Court upheld convictions under the 1917 Act in two other cases, Frohwerk v. United States and Debs v. United States.   Jacob Frohwerk was the publisher of a German language newspaper, Missouri Staats-Zeitung. He was prosecuted for a dozen articles published between June and December 1917. Again, the speech was the antithesis of shouting fire in a crowded theater or that which would pose a clear and present danger.   Without doubt, any court today would regard it as expression protected by the very core of the First Amendment. It took the jury only three minutes of deliberation to convict Frohwerk of violating the 1917 Espionage Act and the judge sentenced him to 10 years in prison for his writings. The Supreme Court affirmed.

Albert Burleson was appointed Postmaster General by Woodrow Wilson

In Debs v. United States, the Court affirmed the conviction of Socialist Party leader Eugene Debs who had been sentenced to jail for ten years for violating the 1917 Act. Debs was a national political figure, having run for President in 1900, 1904, 1908, and 1912. Debs was convicted for a speech that was primarily advocacy of socialism, but it included some mild criticism of the draft. At one point in a long speech, Debs remarked that he had to be ‘‘prudent’’ and not say all that he thought, but that ‘‘you need to know that you are fit for something better than slavery and cannon fodder.’’ For this mild statement Debs was convicted of attempting to incite disloyalty in the military and obstruct the draft. Again, the Supreme Court affirmed.

Moreover, during World War I, the Postmaster used the authority under the statute to seize magazines and newspapers. Albert Burleson, a reactionary racist from Texas who despised labor unions and the people who supported them, began a campaign to root out magazines and newspapers that promoted socialist or radical causes.

The subsequent use of the Espionage Act reinforces reasons for great concern. It is the statute used to prosecute Daniel Ellsberg and Chelsea Manning. It is a law that can be used to punish those who provide information to the press and to those who disseminate information. The Act is so broadly written that there is no way to know the speech that it has chilled over the years. I have great fears of how it might be used in the next four years with a President who has shown such great hostility to the press.

When Can a Government Employee Leak Classified Information?

by Geoffrey R. Stone

The Espionage Act of 1917, as amended over the years, forbids government employees to disclose classified information to any person who is not authorized to have access to it. For this reason, most prosecutions of government leakers of classified information have relied upon the Espionage Act. The Act recognizes no defense for government employees who leak such information. This is one of Edward Snowden’s justifications for refusing to return to the United States to face prosecution. He maintains that the absence of a defense that would exonerate government leakers of classified information whose acts do more good than harm is unjust. As we look to the future, a central question is whether the Espionage Act should be amended to recognize such a defense.

Edward Snowden (credit: The Guardian)

At first blush, there is obvious logic in Snowden’s position. After all, if someone does more good than harm, shouldn’t they be free to do the good? Moreover, this seems especially sensible in the context of classified information, because the test for classification is whether the disclosure of the information might “reasonably be expected to harm the national security.” There is no balancing at all of good versus harm. The standard does not take into account the possible benefits of the leak and it does not require that the harm be likely, imminent, or grave.

Moreover, the government quite predictably tends to over-classify information. The simple rule is: Better be safe than sorry. In addition, we know from experience that public officials have on occasion abused the classification system in order to hide from public scrutiny their own misjudgments, incompetence, and venality.

In light of these concerns, it might seem logical to amend the Espionage Act to permit a government employee legally to disclose classified information whenever she can demonstrate that the benefit of the disclosure outweighed the actual harm to the national security. Why shouldn’t Edward Snowden have such a defense, if he can prove the case? After all, granting such a high level of deference to the government in these situations significantly overprotects government secrecy at the expense of both official accountability and informed public debate. Even worse, in some situations the leaker might disclose the existence of programs that are themselves unlawful. In that case, how can it possibly be right to make it a crime for the government employee to disclose the information to the public?

The government’s response to all this is fairly straightforward. First, except in extraordinary circumstances like self-defense, we don’t give individuals a right to break the law because, in the circumstances, committing the crime might do more good than harm. For example, if X steals someone’s purse because he needs money to feed his children, he could easily argue that his theft did more good than harm, but that is not a defense. One could, of course, multiply that hypothetical endlessly.

Second, there are more than a million government employees and private contractors who have access to classified information. The government will argue that it would be reckless in the extreme to permit each of those individuals to think that it is permissible for them to disclose classified information whenever they conclude that the good would outweigh the harm. Even if in some instances they might be right, often they will be wrong – especially because individual government employees and contractors are rarely in a position to understand how the information they plan to disclose might damage the national security. Thus, the government will argue, the only sensible thing to do is to take that option away from these employees. Finally, the government will point out that in order to prove in court that a leak caused substantial damage it would often have to reveal even more classified information, often including sources and methods, which would make such inquiries especially problematic.

So, what’s to be done? It seems unlikely that the Supreme Court will recognize a First Amendment right of government employees to leak classified information. The implementation of a constitutional rule that permits leaks would just be too messy for the Court to impose or to implement. As a legislative matter, though, it would make sense to create some internal mechanism through which these employees can raise their concerns, especially if they believe the programs at issue to be unlawful. To-date, though, there seems to be little interest in such an option. Another possibility, of course, is simply to tighten up the standards and procedures for classification. No one doubts that we currently live in a world of gross over-classification.

Are there cases one can imagine in which even under existing law it would seem implausible to punish a leaker? Suppose an FBI agent learns from a classified document that at the direction of the Russian government the FBI assassinated the president? I rather suspect that if she leaked that information, assuming it is accurate, she would not go to jail.

It’s (Long-Past) Time to Modernize the Espionage Act

by Stephen Vladeck 

For a law that turns 100 today, and that’s only been materially amended once in a century, the Espionage Act has sure enjoyed a popular resurgence of late. President Barack Obama used it to prosecute more leakers than all previous Presidents put together. Critics of Secretary Hillary Clinton’s unauthorized use of a private e-mail server sought desperately to make the (legally unconvincing but politically damaging) argument that she had violated the statute. And when former FBI Director Jim Comey revealed just last week that he had been responsible for leaking a memo memorializing a conversation he had with President Trump, commentators quickly gravitated toward the Act as proof that, if any laws were broken as part of Comey’s termination, it was the old chestnut herself through Comey’s transgression.

U.S. Army Intelligence WW I Poster Warned Americans About German Spies.

What all of these recent stories have in common is the absence of actual “espionage”— the conduct that motivated Congress to enact the law in the first place. The Act was written on the eve of the United States’s entry into World War I, and, as importantly, before the emergence of either the modern terminology for national security classification or the Supreme Court’s modern First Amendment and vagueness jurisprudence. But because Congress has resisted decades of calls to revisit it, it remains on the books mostly as initially enacted—a statute aimed at German spies. Its clunky and capacious language paints with the same brush three distinct offenses:

1. classic espionage,
2. leaking, and
3. the retention or redistribution of national defense information by third parties.

Part of why it’s so problematic that the Espionage Act treats these three very different sins as the same crime is because of its outdated (and outmoded) language. We now have a sophisticated series of Executive Orders that define and regulate the scope of “classified” national security information, and that have, unlike the Espionage Act, regularly been updated to respond to changes in technologies and threat vectors. One would think it is those provisos, and not a century-old statute, that better reflect the true contemporary scope of “information relating to the national defense.”

And, along with classification, we also now have a far-more-sophisticated understanding of the problem of over-classification—and why it’s so problematic that courts have refused to recognize “improper classification” as a defense to an Espionage Act prosecution. Thus, the more information that has become classified, the easier it has become to violate the Espionage Act through conduct that bears increasingly less resemblance to spying.

Finally, we also now have First Amendment jurisprudence that recognizes at least some circumstances (albeit virtually none thus far involving national security information) in which the disclosure of certain previously confidential material might be of such surpassing public concern as to be protected by the First Amendment even when it might otherwise be unlawful. But the 100-year-old verbiage of the Espionage Act doesn’t account for any of these developments. That may be why, 37 years ago (before it qualified for Medicare), the Act was decried by Anthony Lapham, then the General Counsel of the CIA, as the “the worst of both worlds.” As he then explained to Congress:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

Modernizing the Espionage Act won’t be easy. But 100 years in, it’s long past time for Congress to do so.

“After a string of high-profile and sometimes violent instances of censorship this past school year, free speech on campus has become a pressing concern for many Americans,” said FIRE Legislative and Policy Director Joe Cohn. “We are pleased that the Senate Judiciary Committee is taking this issue seriously and hope this hearing will raise new awareness on Capitol Hill of the problems posed by campus censorship.”

Today, at 10:30 a.m. ET, the United States Senate Committee on the Judiciary will hold a hearing titled:

• “Free Speech 101: The Assault on the First Amendment on College Campuses.”

→ The hearing will be live streamed on the committee’s website.

→ Presiding: Chairman Charles Grassley

→ Ranking Member: Dianne Feinstein

→ Those testifying are:

1. Zachary R. Wood
2. Frederick M. Lawrence
3. Isaac Smith
4. Fanta Aw
5. Eugene Volokh
6. Richard Cohen
7. Floyd Abrams

STATEMENT OF FLOYD ABRAMS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY

June 20, 2017

Chairman Grassley and Ranking Member Feinstein: I appreciate the opportunity to appear this morning to comment on the status – or, I could say, the sad state – of freedom of speech on college campuses around the nation.

About two years ago, I gave a speech in Philadelphia at Temple University in which I tried to answer the question of what the single greatest threat to free speech was in the nation. And where it was. I concluded then, as I do now, that the locale of the threat was on our college campuses and that the nature of the threat was nothing less than the suppression of free speech on our campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, disturbing.

That is so notwithstanding ever-increasing focus on the problem, as illustrated by this significant hearing. Put plainly, the problem arises less because of a desire of university administrators to limit speech on campus – there is some of that, but it is not the dominant cause – than the conduct of a minority of students who will simply not tolerate the expression of views which they view as socially harmful or destructive.

A critic of recent speech-destructive behavior on campus has an overstuffed menu of choices to choose to discuss. Shall I focus on Evergreen, Middlebury or Berkeley? Or Milo Yiannopoulos or Ann Coulter? On the cancellation of previously made invitations to speakers such as Christine Lagarde, the first woman to head the IMF? Or the loud and strident interruptions to speakers – former New York City Police Commissioner Ray Kelly was one of many – to the point that the speech simply could not proceed?

Let me start instead with two examples. The President of California State University Los Angeles cancelled a speech by an editor of Breitbart, the conservative publication, who was about to speak on a topic that he had entitled as “When Diversity Becomes a Problem.” The explanation for the cancellation was—this one is worth saying slowly—“the need for free exchange of ideas.” According to the president of the university, the speaker could appear (but only appear) as part of a group of people with varying viewpoints on diversity. He could not speak alone, as left-wing speakers such as Cornel West and Angela Davis had spoken at CSU, with no request, let alone requirement, that the “other” side be heard simultaneously.

And, speaking of California, just yesterday (June 19^th) a complaint was filed in federal court in San Francisco on behalf of Jewish students at San Francisco State University arising in part out of the misconduct of other students who effectively shut down a speech by the Mayor of Jerusalem by the use of amplified sound and loud and virulent anti-Semitic chants. The complaint sets forth in painful and exhaustive detail the disruption and the conscious decision of the university administration to order police to stand down and allow the shouting students to shut down the event and prevent the Mayor from delivering his scheduled speech, as well as the administration’s decision not to discipline any of the students, or the student group which prevented the speech from being delivered.

Thinking of just those examples, I couldn’t help but compare them to the time when I entered Cornell University more than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus—a real loss, I can say in retrospect—but very much the ethos of life in America on and off campus in the long ago 1950s.

In fact, in those days, what was viewed as the most dangerous threat to freedom of speech on campus was the power that wealthy and politically regressive alumni sometimes exercised on some campuses. For an artistic look at that sort of danger, have a look at an old [1942] movie called “The Male Animal,” with Henry Fonda playing the role of a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted—quite possibly unjustly—of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views.

But today there are new censors – sometimes students, sometimes with outside support — who seek to place new limits on what may be said on campus. What can one say in response to this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1859, “have every thought brought before us when we are young, and we may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. Wendy Kaminer, writing in the Washington Post, described a panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive figure) by name—perhaps you can recall it– she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence”.

The problem is not unique to our country. Just as the First Amendment, which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer has reported on one English university that banned supposedly “racist” sombreros and native American dress; and of another where a debate on abortion was cancelled by College Censors (that’s their official name) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, seem to want to see and hear only views they already hold. And to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Holmes, to whom I referred earlier, in one of his most famous opinions, long ago observed that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress” we have seen speech stifled time and again on campuses in our country.

I don’t mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Incitements to violence are no more protected by the First Amendment on campus than anywhere else. And as the University of Chicago advised the entering class of 2020 at the same time it eloquently defended free speech on campus, “freedom of expression does not mean the freedom to harass or threaten others.”

Nor should students be condemned for feeling and speaking passionately against what they perceive to be racist speech or conduct. Indeed it is important that student activism should generally be encouraged and protected, just as criticism of that activism should be protected, just as I wish we had had far more of all of it when I was in college and that I had participated in it. The absence of such speech was a loss to me, my generation and our nation.

Most campus activism in public universities is protected by First Amendment and in private universities by internal commitments by universities to abide by First Amendment norms. We need more students, not fewer, to become involved with the public issues of the day and on campuses. Their doing so is indispensable if society is to change for the better. If students disagree with the views of a speaker, they should engage with it, picket it, even walk out on it. I do not, in that respect, agree with the criticism voiced by Fareed Zakaria, among others, of students who peacefully walked out at Notre Dame when Vice President Pence was beginning a speech there. Doing so is not only one form of First Amendment protected conduct but a long-recognized and honored one. What is unacceptable is preventing speech from occurring, not protesting it.

Have students changed? Have their views? I have read a disturbing study, by the Higher Education Research Institute at UCLA, based on surveying the views of over 141,000 full-time first year students at colleges around the country.

• About 71% of them said that they agreed “strongly” or “somewhat” that “colleges should prohibit racist/sexist speech on campus”;
• about 43% of them said that they agree “strongly” or “somewhat” that “colleges have the right to ban extreme speakers from campus”;
• and only 64% said that they “strongly “or at least “somewhat” agree that “dissent is a critical component of the political process.”

Put another way, over a third of the entering students polled did not agree that dissent is a critical component of the political process.

Another study concluded that while only 12 percent of my generation (don’t ask what ages I’m talking about) think the government should be able to punish speech viewed as offensive by minority groups, around a 25% of the immediately succeeding generations thought so, and 40 percent of millennials (people 18-34) think so. I know you can read that in two ways. One is the optimistic way. The younger people are, the more unwilling they are to simply accept the existence of often outrageous, even destructive speech. The other way is to conclude that the younger a generation is, the less knowledgeable it is about (or, worse yet, unwilling to accept) the essence of the First Amendment. In that respect, another study concluded that nearly a third of college students could not identify the First Amendment as the one that even deals with freedom of speech. Maybe both are correct. But wouldn’t it be better if we all condemned racist or sexist speech but we all also knew and celebrated the freedom provided by the First Amendment, especially if we know what it says and what it means.

Of course, “extreme” speech is sometimes upsetting, sometimes painful to hear—if you choose to do so. Racist or sexist speech is harmful to the body politic and painful to those at whom it is aimed and those who listen to it. But the First Amendment is rooted in the notion that government (including the administrators of state universities) is not to be trusted to determine what is “extreme” speech, what is “sexist” speech, or the like. Or to punish it, even if they think they can define it. Former President Obama, I think, put it well when he said this: “I’ve heard of some college campuses where they don’t want to have a guest speaker who is too conservative or they don’t want to read a book if it has language that is offensive to African-Americans or somehow sends a demeaning signal towards women. I’ve got to tell you, I don’t agree with that, either. I don’t agree that you, when you become students at colleges, have to be coddled and protected from different points of view.”

A final note. I understand why any university leadership seeks to avoid any potential conflict on campus about speech that some students finds deeply offensive. Why would it not? What university administration would not seek to avoid such any such clash, especially since our nation still has so much to answer for with respect to its historic mistreatment of racial and other minorities? And at a time where serious steps must still be taken, on campus and off, to address ongoing manifestations of racism, sexism, anti-Semitism or the like.

But the answer to the suppression of almost any speech, the First Amendment answer, cannot be to limit expression but to discuss it, not to bar offensive speech but to answer it. Or to ignore it. Or to persuade the public to reject it. I know that’s easy to say but it’s got to be the way we respond to speech which we abhor. What is unacceptable is to suppress the speech. That is why I welcome this hearing the opportunity you have given me to participate in this hearing.

Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never can — Simon Tam

The Slants (credit: Anthony Pidgeon/Redferns, via Associated Press)

A major First Amendment victory — National ACLU

The far-reaching importance of this case cannot be overstated — National Law Journal

The opinion: Matal v. Tam (June 19, 2017) (Oral Argument Transcript)

Counsel for Respondent: John C. Connell

Coursel for Petitioner: Malcolm L. Stewart (Deputy Solicitor General)

Briefs Filed in Case: Parties & Amici

Video Interview: Extended Interview: The Slants’ Simon Tam (KOIN 6, June 19, 2017)

SCOTUSblog Symposium 

1. Irina Manta, The cacophony of trademarks is not government speech
2. Lisa Ramsey,  Increasing First Amendment scrutiny of trademark law after Matal  v. Tam
3. Christine Farley,  Free speech comes to trademark law
4. Ned Snow, The First Amendment silences trademark
5. Caleb Trotter, The Constitution prohibits government’s “happy-talk” requirement for trademark registration

FIRE: So to Speak Podcast 

• The Slants win at the U.S. Supreme Court! (Nico Perrino interviews Ron Collins &  Zach Greenberg followed by an earleir-recorded interview with the members of the Slants band)

Cato Podcast: The Michael Berry Show

• Josh Blackman discusses Matal v. Tam and free speech

Rolling Stone Magazine

• Kory Grow, Inside Asian-American Group the Slants’ Supreme Court Free-Speech Win

Balkinization

• Marty Lederman, Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment

Constitutional Law Prof Blog

• Ruthann Robson, SCOTUS Declares “Disparaging Trademarks” Provision Violates First Amendment

Volokh Conspiracy

• Eugene Volokh, Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment

Bloomberg View

• Stephen L. Carter, Offensive Speech Is Free Speech. If Only We’d Listen

The Federalist

• Ilya Shapiro, Supreme Court Refuses To Let Government Determine What Trademarks Are ‘Offensive’

Forbes

• Jeff Kobulnick, The Slants Win Big Supreme Court IP Battle

Slate

• Mark Joseph Stern, Does Partisan Gerrymandering Violate the First Amendment? (A pair of Supreme Court decisions about freedom of speech strengthen the plaintiffs’ argument in a blockbuster redistricting case.)

In A Crowded Theater

• Erica Goldberg, The Opinion in Matal v. Tam (Final Post in a Series)

This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves. — Simon Tam

Today, after consideration in many conferences, the Court agreed to hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The issue in the case is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. The Coloroado Court of Appeals denied those First Amendment claims.

→ Counsel of record for Petitioners: Jeremy D. Tedesco (cert. petition here)

2016-2017 Term: First Amendment Free Expression Opinions  

With the close of this Term, the Roberts Court has rendered opinions in 46 First Amendment free-expression cases. Notably, as indicated below, this Term the Court was unanimous in all three of its First Amendment free speech cases.

1. Packingham v. North Carolina (2017) (8-0, per Roberts, C.J.) (opinion by Alito, J., concurring in the judgment) (striking down N.C. law prohibiting registered sex offenders access to Internet sites that permit minor children to become members or to create or maintain personal Web pages)
2. Matal v. Tam (2017) (8-0, per Alito, J.) (with separate opinions by Kennedy, J., concurring in part & concurring in the judgment, and Thomas, J., concurring in part & concurring in the judgment) (disparagement clause of the Lanham Act violates the First Amendment’s free speech clause)
3. Expressions Hair Design v. Schneiderman (2017) (8-0, per Roberts, C.J.) (opinion by Breyer, J., concurring in the judgment, and an opinion by Sotomayor, J., concurring in the judgment) (holding that N.Y. credit card surcharge statute regulates speech within the meaning of the First Amendment; remaded to determine whether law was valid commercial speech regulation under Central Hudson and whether the law can be upheld as a valid disclosure requirement under Zauderer).

Pending Appeals & Petitions & Related Cases

1. Elonis v. United States
2. Harris v. Cooper 
3. National Institute of Family and Life Advocates v. Becerra
4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
5. Livingwell Medical Clinic, Inc. v. Becerra

Summary Dispositions

1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
2. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Garcia v. Bloomberg
2. Mulligan v. Nichols
3. Alabama Democratic Conference v. Marshall
4. Augsburg Confession
5. Keefe v. Adams
6. Scott v. Georgia
7. Bondi v. Dana’s Railroad Supply
8. Bennie v. Munn
9. Flytenow v. Federal Aviation Administration
10. Armstrong v. Thompson
11. Wolfson v. Concannon
12. Dart v. Backpage.com
13. NCAA v. O’Bannon
14. Mech v. School Board of Palm Beach County
15. Williams v. Coalition for Secular Government 
16. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Petition Denied

• Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Cert. Denied  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

Roberts Court Era: Justice Kennedy’s Majority or Plurality First Amendment Free-Expreesion Opinions 

Given the talk in the news about Justice Anthony Kennedy’s possible retuirment, I thought it useful to list his free-expression First Amendment opinions published during the era of the Roberts Court:

1. Garcetti v. Ceballos (2006) (vote: 5-4)
2. Citizens United v. Federal Election Commission (2010) (vote: 5-4)
3. Sorrell v. IMS Health Inc. (2011) (vote: 6-3)
4. Borough of Duryea v. Guarnieri (vote: 2011) (8-1)
5. United States v. Alvarez (2012) (vote: 6-3)
6. Packingham v. North Carolina (2017) (vote: 8-0)

→ Notable Roberts Court Era Separate Opinions:

• Matal v. Tam (2017) (concurring in part & concurring in the judgment)
• Williams-Yulee v. The Florida Bar (2015) (5-4) (dissenting)

College fires professor over comments made on TV

This from a story by Josh Delk writing for The Hill: “Essex County College has fired adjunct professor Lisa Durden after she made racially charged comments in an interview with Tucker Carlson on Fox News, according to a new report by the Associated Press.”

Tucker Carlson & Professor Lisa Durden

“The college’s president, Anthony Munroe, announced the decision Friday, two weeks after Durden went on “Tucker Carlson Tonight” to discuss an “all-black Memorial Day celebration” hosted by a Black Lives Matter group.”

“When asked by Carlson about the event, Durden interrupted the host, saying “boo hoo hoo. You white people are angry because you couldn’t use your white privilege card to get invited” to the Black Lives Matter event.”

“‘You’re demented, actually,’ Tucker later responded to her defense.”

“Durden went on to call America a ‘racist society.'”

“According to AP, Durden was suspended with pay on June 8, two days after the interview aired, when college officials say they received complaints about her comments. After a Tuesday meeting with college officials, she was fired. . . .”

→ Video clip here

→ Full text of statement from college president here

President Anthony E. Munroe

→ Excerpt from President Anthony E. Munroe’s statement: “While the adjunct who expressed her personal views in a very public setting was in no way claiming to represent the views and beliefs of the College, and does not represent the College, her employment with us and potential impact on students required our immediate review into what seemed to have become a very contentious and divisive issue. For the purpose of a fair and immediate review, the adjunct was suspended with full pay, for the remainder of the summer I session which equated to six (6) working days, pending the outcome of a fair and thorough review of the matter. The adjunct addressed the College community at an open forum on June 20th. In consideration of the College’s mission, and the impact that this matter has had on the College’s fulfillment of its mission, we cannot maintain an employment relationship with the adjunct. The College affirms its right to select employees who represent the institution appropriately and are aligned with our mission.”

FIRE’s Policy Reform department is hiring

By Azhar Majeed June 22, 2017

Free speech-minded attorneys and recent law school graduates, pay attention: FIRE is looking to add a new staff member to its Policy Reform department.

FIRE’s Policy Reform team works with college students, faculty members, administrators, and general counsels to improve their institutions’ protections for free speech and academic freedom. We help to revise unconstitutional and restrictive speech codes, enact policy statements codifying the principles underlying the First Amendment, and work in other ways to improve the campus climate for free expression. We’re now looking to add another member to our team!

Applicants can check out the full job posting before submitting their application materials.

The ideal applicant will be passionate about First Amendment law and principles, demonstrate enthusiasm for working with students, faculty members, and administrators, and possess the legal analysis, writing, and research skills that are critical to a successful career in constitutional law and civil liberties.

Chris Finan: New Director of National Coalition Against Censorship

Chris Finan

NCAC Press Release: The National Coalition Against Censorship (NCAC), an alliance of 56 national non-profit organizations, announced today that it has hired Christopher M. Finan as its next executive director.  Joan Bertin, the current executive director, is stepping down after leading the organization for 20 years.  NCAC promotes freedom of thought, inquiry and expression and opposes censorship in all its forms.

“We are indeed lucky that a free expression advocate the caliber of Chris Finan has agreed to lead the NCAC to its next chapter,” said Jon Anderson, chair of the NCAC Board of Directors and president and publisher of Simon & Schuster Children’s Publishing. “In this most challenging of times for First Amendment rights, we need someone with the experience and reputation that Chris brings to the table in protecting the rights of all Americans to express themselves as they choose.”

Finan has a long career as a free speech activist.  He is currently director of American Booksellers for Free Expression, part of the American Booksellers Association (ABA).  In 1982, he joined Media Coalition, a trade association that defends the First Amendment rights of booksellers, publishers, librarians and others who produce and distribute First Amendment-protected material.  In 1998, he became president of the American Booksellers Foundation for Free Expression.  The foundation merged with ABA in 2015.

Finan has worked closely with NCAC as a member of the board of directors and as a board chair.  In 2007, he and Bertin created NCAC’s Kids’ Right to Read Project, which supports parents, students, teachers and librarians who are fighting efforts to ban books in schools and libraries.

“I am very grateful for the opportunity to lead an organization that plays such an important role in protecting free expression.  I am also very fortunate to be succeeding Joan Bertin, who has led NCAC’s vigorous defense of free speech during a time of growing censorship pressure,” Finan said.

As examples of NCAC’s recent advocacy, Finan pointed to statements defending publishers who are pressured to censor books that some critics consider offensive, condemning the Trump administration’s attacks on the press and criticizing the Walker Art Center’s decision to dismantle a sculpture after accusations that it was “cultural appropriation.”

Joan Bertin Honored by Freedom to Read Foundation

NCAC Press Release:  Joan Bertin, the National Coalition Against Censorship’s (NCAC) longtime executive director, is a 2017 recipient of the Freedom to Read Foundation’s (FTRF) Roll of Honor Award, which recognizes individuals for outstanding contributions to safeguarding intellectual freedom and the right to read.

Joan Bertin

The FTRF, which is affiliated with the American Library Association, protects and defends the First Amendment to the Constitution and supports the right of individuals to access information. Bertin is being recognized for her efforts to provide “support, education, and direct advocacy to people facing book challenges or bans in schools and libraries.”  In announcing the award, the FTRF observes that under Bertin’s leadership, NCAC has defended hundreds of book titles across the country, helping ensure that thousands of children will continue to enjoy literary masterpieces and popular young adult novels.

Bertin said, “I am deeply honored by the award, especially for its recognition of NCAC’s contributions to the protection of the intellectual freedom rights of young people.  Books can contribute so much to kids’ intellectual and emotional development, and it has been my privilege and pleasure to protect their right to read.”

The award will be presented at the 2017 American Library Association Annual Conference during its Opening General Session on Friday, June 24, in Chicago.

New Additions to FIRE’s Online First Amendment Library

• The History of the Alien, Sedition, Espionage, & Related Acts
• Secondary Effects Doctrine Essay
• Overbreadth Essay
• Nude Dancing Essay

Forthcoming: Timelines on Movie Censorship and Anthony Comstock

Forthcoming Books

• Loren Glass, Rebel Publisher: How Grove Press ended censorship of the printed word in America (Seven Stories Press, March 20, 2018)

Professor Loren Glass, English Dept., University of Iowa

Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.”

Related: Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (2016)

• Joel Simon, The New Censorship: Inside the Global Battle for Media Freedom (Columbia University Press, January 23, 2018)
• Mickey Huff, Andy Lee Roth, et al, editors, Censored 2018: Press Freedoms in a “Post-Truth” Society-The Top Censored Stories and Media Analysis of 2016-2017 (Seven Stories Press, October 3, 2017)

New & Notable Blog Posts

1. Ruthann Robson, En Banc Ninth Circuit Upholds Liquor Regulation Against First Amendment Challenge, Constitutional Law Prof Blog, June 23, 2017 (“In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.”)
2. Zach Greenberg, Supreme Court strikes down law prohibiting disparaging trademarks, affirms protection for offensive expression, FIRE, June 20, 2017

News, Op-eds, Editorials & Blog Posts

→ Ilya Shapiro, Even sex offenders have First Amendment rights, Washington Examiner, June 19, 2017

1. Alex Swoyer, Islamic State flag on New Hampshire dam raises First Amendment questions in times of terrorism, Washington Times, June 25, 2017
2. Mark Joseph Stern, Does Partisan Gerrymandering Violate the First Amendment?, Slate, June 19, 2017

Next Scheduled FAN, #159: June 14, 2017

Last Scheduled FAN, # 157: Today: Senate Judiciary Committee to hold hearing on campus free speech

Last FAN, #157.1: Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

Note: Summer schedule until September 6th when I will return to a regular Wednesday weekly schedule. 

Professors Geof Stone & Vince Blasi

This book was in some ways an accident. One day in occurred to me [that] the Supreme Court has made, what I regard, all this progress in these various areas relating to sexual freedom, over the last 60 years. (It’s was actually 50 years ago when I had that thought. . . .) I said, ‘what would the framers have thought of this?’ Not that I’m an originalist, because I’m not. I was just sort of curious. Because I really didn’t have any idea of wat they would have thought of the world we’re living in today. — Geoffrey Stone 

Last month, the First Amendment Salon hosted its 14th salon, which consisted of a conversation betwwen Professors Vince Blasi and Geoffrey Stone. The dialogue, which was introduced by Lee Levine, focused on Stone’s latest book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, 2017).

→ A video of this rich and engaging dialogue can be found here, thanks to Nico Perino and the folks at FIRE.

→ The next salon will occur in New York on November 14th at 6:00 pm. It will consist of a Second Circuit reargument of the the Masses case (2nd Cir., 1917). Details forthcoming in early fall. This Salon will follow the all day conference at New York Universtiy celebrating the 100th anniversary of Judge Learned Hand’s district court opinion in that case.

“Ninth Circuit poised to resolve major free speech issue in secret proceeding”

Paul Alan Levy writing in the Consumer Law & Policy Blog notes that “[t]he United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.”

Paul Alan Levy of Public Citizen

“The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.”

“In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.”

[ht: Volokh Conspiracy]

Professor Ruthann Robson

Robson on New First Amendment Rulings

• Ruthann Robson, Third Circuit: First Amendment Right to Record Police, Constitutional Law Prof Blog, July 7, 2017 (In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.’  As the panel majority opinion by Judge Thomas Ambro noted, ‘Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public’; the Third Circuit joined ‘this growing consensus.'”)

           → Video of oral arguments in Third Circuit 

• Ruthann Robson, District Judge Finds Utah’s “Ag-Gag” Law Violates the First Amendment, Constitutional Law Prof Blog, July 12, 2017 (“In a careful and well-reasoned opinion in Animal Defense Fund v. Herbert, United States District Judge for Utah, Judge Robert J. Shelby, has concluded that Utah’s so-called ‘ag-gag’ statute, Utah Code §76-6-112, is unconstitutional as violating the First Amendment.)

See also: Rebecca Tushnet, Court gags on Utah’s ag-gag law (July 13, 2017)

→ Related:  Press Release: Animal Legal Defense Fund Puts Wisconsin Hunting Statute in the Cross Hairs (“Today the Animal Legal Defense Fund filed a lawsuit in federal court aiming to strike down a recently amended Wisconsin statute which bans photographing, videotaping, approaching or even “maintaining a visual or physical proximity” to a hunter. The organization argues the law unconstitutionally restricts free speech and violates the First Amendment.”)

[ht: David Keating]

National Review headline: “Republicans, Don’t Sacrifice Free Speech to Punish the Media”

Here is how Elliot Kaufman begins the above titled editorial: “You can’t call yourself a supporter of the First Amendment if you would deny the rights it guarantees to those with whom you disagree.”

Elliot Kaufman

“By a margin of over two to one, Republicans support using the courts to shut down news media outlets for “biased or inaccurate” stories, according to a recent poll from The Economist and YouGov. When asked if cracking down on the press in this manner would violate the First Amendment, a narrow majority of Republicans agreed that it does, seeming to create a contradiction. However, a further question gave them a chance to clear the air and reaffirm the primacy of principle over political expediency: “Which is more important to you?” it asked, ‘(A) Protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories; (B) Punishing biased or inaccurate news media, even if that means limiting the freedom of the press; (C) Not sure.'”

“Shockingly, a full 47 percent of Republicans support “punishing biased or inaccurate news media, even if that means limiting the freedom of the press,” versus just 34 percent who support “protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories.” By contrast, 59 percent of Democrats said they prioritize protecting the freedom of the press, dwarfing the 19 percent who see it the other way. On this issue, the Democrats are right. Freedom of the press is included in the Bill of Rights for two reasons: It matters, and there is perpetually an illiberal temptation to extinguish it. Republican politicians will always call CNN and the New York Times ‘biased’ and ‘inaccurate.’ . . . .”

Looking Back: 1972 | Pressmen Balk at an Impeachment Ad in The Times

Writing in the New York Times recently, David Dunlap began his story with this: “‘A Resolution to Impeach Richard M. Nixon as President of the United States,’ said the headline across a two-page political advertisement in The New York Times. It had nothing to do with Watergate. In fact, the break-in at the Democratic National Committee office in the Watergate complex — the “third-rate burglary” that ultimately doomed President Nixon — hadn’t even occurred on May 31, 1972, when the ad ran. . . .”

“Down in The Times’s basement pressroom at 229 West 43rd Street, the men who printed the newspaper were having none of it. . . . The pressmen demanded that The Times remove the ad. The management refused. Then they demanded space in the paper to express their opposition. The management refused again. By this time, the start of the press run had been delayed almost 15 minutes — a critical interval given delivery timetables that required Times trucks get to newsstands, depots, railroad stations and airports on a pinpoint schedule.”

“Arthur Ochs Sulzberger, the publisher, was infuriated. . . .”

Ira Glasser responds in letter-to-editor:

“I was the head of the New York Civil Liberties Union when we represented the plaintiffs in the 1972 impeachment ad case you describe. It was the first time the government tried to use a campaign finance law to suppress criticism of an elected official.”

“The Times vigorously supported the free speech right of the citizens we represented, and we won.”

“Later, the ACLU (a corporation) itself was effectively barred by campaig

Ira Glasser

n finance law from running an ad in the Times criticizing President Nixon for his views on school integration. We sued, and again the Times vigorously supported our free speech right against restrictions in campaign finance law, and our ad was published.”

“In 2010, an organization called Citizens United, also a corporation like the ACLU, tried to broadcast a film it had made critical of Hillary Clinton, as we had years before been critical of Richard Nixon. Again, the government tried to use the campaign finance law to block the film from being shown. The Supreme Court struck that attempt down.”

“But this time the Times radically changed its position, and denounced the Court’s decision, opposing publication of the Citizens United film criticizing Clinton, a radical departure from its support of the ACLU’s ad criticizing Nixon.”

“Why the change? What happened at the Times that led it to abandon the First Amendment, upon which its own freedom of the press depends?”

Ira Glasser

The writer was executive director of the NYCLU 1970-78 and of the ACLU 1978-2001.

3 Notable Forthcoming Scholarly Articles 

→ Al-Amyn Sumar, Are All Prior Restraints Equal? The Constitutionality of Gag Orders Issued under the Stored Communications Act, Yale Journal of Law & Technology (Forthcoming 2017)

Al-Amyn Sumar of Levine, Sullivan, Koch & Schulz

Abstract: The First Amendment abhors no restriction on speech more than a prior restraint. A prior restraint on expression — a restriction that “forbid[s] certain communications when issued in advance of the time that such communications are to occur” — is “the most serious and the least tolerable infringement on FirstAmendment rights,” and bears a “heavy presumption” of unconstitutionality. Put simply, the prohibition on prior restraints under black letter First Amendment law is “near-absolute.”

The focus of this Essay is the source of an unexpected but important challenge to classic prior restraint doctrine: government surveillance in the digital era. Ongoing litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person’s stored Internet communications from a service provider, and to seek a gag order preventing the provider from even notifying a person of that fact. In April 2016, Microsoft brought a lawsuit against the Department of Justice in federal court, alleging that gag orders issued under the SCA constitute unconstitutional prior restraints and content-based restrictions on speech. In a February 2017 decision, the court denied the government’s motion to dismiss Microsoft’s First Amendment claims and allowed the suit to proceed.

The court was right to do so, and it should ultimately invalidate the SCA’s gag-order provisions. SCA gag orders are prior restraints on speech, and the statute cannot withstand the heavy scrutiny that applies to them. However, recent decisions addressing the constitutionality of similar gag orders involving National Security Letters suggest that courts are sympathetic to the view that such orders are not “typical” prior restraints, and therefore attract a lesser standard of scrutiny. That premise appears dubious. But even granting it, the SCA poses serious constitutional problems, and it should be either invalidated and then amended or interpreted to avoid those issues. If courts are to carve out an exception allowing for prior restraints in the era of digital surveillance, that exception should be exceedingly narrow.

→ Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, Fordham Law Review (Forthcoming 2017)

Professor Martin Redish

Abstract: Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendmentprotection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.”

This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.

→ Robert Yablon, Campaign Finance Reform Without Law, Iowa Law Review (forthcoming 2017)

Professor Robert Yablon

Abstract: Conventionally understood, campaign finance reform is a matter of public regulation. Reformers believe that, without adequate government intervention, wealthy individuals and entities are destined to exert outsized influence over elections and governance. Propelled by that belief, they have spent decades advocating regulatory fixes, with relatively little to show for it. Many existing regulations are watered down and easy to circumvent. Efforts to bolster them have repeatedly hit doctrinal and political roadblocks — obstacles that are more formidable today than ever before.

This Article seeks to shift campaign finance discourse toward private ordering. Because scholars and reformers have long focused on public regulation, they have largely overlooked possible private correctives. The Article maps that uncharted terrain, revealing an array of extra-legal mechanisms that at least somewhat constrain money’s electoral clout. This survey suggests that numerous private actors have incentives and capacities to implement additional extra-legal reform. The Article then sketches several potential private interventions, and it assesses the interplay between public regulation and private reform. Private reform is no silver bullet, but to ignore private ordering even as public regulation flounders makes little sense. Especially given the significant constraints on public intervention, it is vital for campaign finance scholars and reformers to look beyond the law.

New & Forthcoming Books

• Sigal R. Ben-Porath, Free Speech on Campus (University of Pennsylvania Press, July 28, 2017)

Abstract: From the University of California, Berkeley, to Middlebury College, institutions of higher learning increasingly find themselves on the front lines of cultural and political battles over free speech. Repeatedly, students, faculty, administrators, and politically polarizing invited guests square off against one another, assuming contrary positions on the limits of thought and expression, respect for differences, the boundaries of toleration, and protection from harm.

In Free Speech on Campus, political philosopher Sigal Ben-Porath examines the current state of the arguments, using real-world examples to explore the contexts in which conflicts erupt, as well as to assess the place of identity politics and concern with safety and dignity within them. She offers a useful framework for thinking about free-speech controversies both inside and outside the college classroom, shifting the focus away from disputes about legality and harm and toward democracy and inclusion. Ben-Porath provides readers with strategies to de-escalate tensions and negotiate highly charged debates surrounding trigger warnings, safe spaces, and speech that verges on hate. Everyone with a stake in campus controversies—professors, students, administrators, and informed members of the wider public—will find something valuable in Ben-Porath’s illuminating discussion of these crucially important issues.

The forthcoming summer issue of Litigation Journal (vol. 43 #4) is devoted to the topic of “Chutzpah” and the law.  Included in the issue are the following two articles: