We live by falsehoods. They feed the myths of the great figures whose words are etched in our collective memory as if they were tablets from on High. We know those words; we are moved by those words; and those words define who we are or yearn to be.

Words fitly selected and artfully strung together can change minds and even alter the arc of history. Take, for example, the following words:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

Of course, they are the words of Justice William Brennan — the famous words from his celebrated opinion in New York Times Co. v. Sullivan.

Stephen Barnett

Those words have had a profound impact on the direction of American law and culture. Their importance transcends the mere holding of the case and all the black-letter law that followed them. Talk about doctrine as much as you will; stress the importance of this or that theory of constitutional interpretation as you like; and laud or condemn either judicial activism or judicial restraint as you see fit; but in the end, nothing really matches a tantalizing metaphor or an alluring string of words.

This brings me to my point: For all the kudos that have been and continue to be bestowed on him, the naked fact is that Justice Brennan did not author the words that further enhanced his First Amendment reputation. Let me repeat: he did not write the words that made him yet more famous in free speech circles. One of his law clerks did.

His name? Stephen R. Barnett (1935-2009). Before venturing further, let me say this: I know, this is not news. Seth Stern and Stephen Wermiel flagged this historical point on page 224 of their comprehensive biography of Justice Brennan. Though Tony Lewis did not mention this particular fact in his Make No Law: The Sullivan Case and the First Amendment (1991), he did, nonetheless, mention young Barnett and his recollections of the internal history of the case.

While it is certainly true that Stern and Wermiel shed light on the Barnett authorship, the fact is that Professor Barnett’s great contribution to First Amendment history is otherwise ignored in virtually all academic literature, including casebooks.

→» So, here is the news part, if I may take the liberty: Let’s stop the charade — if judges insist on having their law clerks write their opinions, then credit for those opinions or for notable passages within them must be allowed, if only after a designated period of time not to exceed twenty years after the termination of the clerkship. Though I might be open to reconsidering the matter, for now I am inclined to say that confidentiality agreements should be deemed contrary to public policy if they deny that possibility. I say this as a former law clerk who continues to respect fair norms of confidentiality. (Of course, in my case it was easy since Justice Hans Linde, not his law clerks, wrote all of his opinions.)

Justice Brennan was a great jurist even if he did not write the famous passage from Sullivan or even if he did not author NAACP v. Button (his clerk Richard Posner did). That said, let’s raise a glass to Steve Barnett and let’s credit him whenever we quote that “robust” language from Sullivan.  

→» One more thing, by way of a related point — You know these words: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The author? Justice Oliver Wendell Holmes, of course, writing in Schenck v. United States (March 3, 1919).

But hold on. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”:

‘Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” 

John Fontana, “12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002), discussed in Ronald Collins, The Fundamental Holmes  (2010), p. 234.

California Voters asked to weigh in on Citizens United

A law recently passed in California seeks advice from voters as to whether they approve or disapprove of the following proposal:

“Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States   Constitution are the rights of natural persons only?”

Governor Edmund G. Brown, Jr. allowed the measure to become law without his signature. See Keith Paul Bishop, “Californians To Vote On Stripping Common Cause Of Its First Amendment Rights,” JD Supra, July 21, 2014

Related Stories

→ Senator Mike Lee (R-UT) opposes move to amend First Amendment (see statement here)

→ Anna Palmer & Tarini Parti, “Money Gap? Why Don’t Women Give?,” Politico, July 22, 2014

→ Josh Gerstein, “Stars may be aligning for transparency legislation,” Politico, July 21, 2014

SCOTUS Vacates 9th Circuit Stay of Execution Ruling — First Amendment Claim Rejected 

The case is Wood v. Ryan. On July 18th, a divided Ninth Circuit panel stayed the execution of Joseph Wood on the grounds that the Arizona Department of Corrections unconstitutionally deprived him of information regarding the lethal injection method of his execution. In that regard, he sought and was granted a preliminary injunction to stay his execution pending receipt of the information requested. The lead opinion was authored by Judge Sidney Thomas and joined by Judge Ronald Gould with Judge Jay Bybee in dissent.

C..J. Alex Kozinski, dissenting

The Appellant sought the following information, claiming a First Amendment right of access to it: “the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information: and documents explaining how the Department developed its current lethal-injection drug protocol.”

On July 21st, the Ninth Circuit sitting en banc denied an appeal for a rehearing. Judge Consuelo Callahan dissented and was joined by ten other members of the Court. Though he joined the dissenters, Chief Judge Alex Kozinski also authored a separate dissent in which he declared: “I have little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona’s efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago. There is little I can add to the irrefutable arguments in Judge Bybee’s dissent and Judge Callahan’s disentail.”

That said, the Chief Judge added:

“Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” 

→ The case for the Appellant Wood was argued by Dale A. Baich and Robin C. Conrad, Assistant Federal Public Defenders.

→ Over at the Volokh Conspiracy blog, Professor Orin Kerr, sets out some thoughtful reservations he has about Judge Thomas’s July 18th majority opinion and, as he sees it, the unusual nature of the remedy sought given the posture of the case.

Last evening a unanimous Supreme Court vacated the Ninth Circuit’s temporary stay. Over at SCOTUSblog, Amy Howe filed this report on the case:

Kozinski’s words proved prophetic, as this evening the Supreme Court granted the state’s request to vacate the temporary stay ordered by the Ninth Circuit. The Court also denied Wood’s request for a stay of execution, along with his petition for certiorari. Although the requests originally went to Justice Anthony Kennedy, the Justice responsible for (among other things) stay requests from the geographic area of the Ninth Circuit, which includes Arizona, Justice Kennedy – as the Justices often do – referred the requests to the whole Court, and there were no dissents or separate statements from any of the Justices regarding the Court’s actions tonight. The basis for the Court’s ruling was that the district court had not abused its discretion in denying a stay, so conceivably the result would have been different if Wood had won in both lower courts. But the dearth of dissents suggests not.

Upcoming Net Neutrality Event

The Floyd Abrams Institute for Freedom of Expression will host a conference entitled “Net Neutrality: From Debate to Policy Decisions”

Here is a description of the forthcoming event:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Date: Monday, November 3, 2014

Location: The Century Association, 7 West 43rd Street, New York, N.Y.

→ More information to follow as we near the conference date.

Steve Shapiro

ACLU’s Steve Shapiro Interviewed 

Check out the SCOTUSblog video interview with Steven Shapiro, the legal director of the American Civil Liberties Union. Quite interesting how an ACLU fellowship affected his life early on. (And Part II of the interview can be found here.)

Forthcoming Books

• Ronald Columbo, The First Amendment and the Business Corporation (Oxford Univ. Press, Sept. 17, 2014)
• Tom Flanagan, Persona Non Grata: The Death of Free Speech in the Internet Age (Signal, Oct. 2014)
• Peter Molnar, editor, Free Speech and Censorship Around the Globe (Central European University Press, Oct. 2014)
• John L. Hoben, Learning What You Cannot Say: Teaching Free Speech and Political Literacy in an Authoritarian Age (Peter Lang Pub Inc., Oct. 2014)
• Anshuman Mondal, Islam and Controversy: The Politics of Free Speech After Rushdie (Palgrave Macmillan, Nov. 2014)
• Monroe Price, Free Expression, Globalism, and the New Strategic Communication (Cambridge Univ. Press, Dec. 2014)
• Charles Slack, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech (Atlantic Monthly Press, March 2015)
• Judith Miller, The Story: A Reporter’s Memoir (Simon & Schuster, April 2015)
• Carol Berkin, The Bill of Rights: James Madison and the Politics of the People’s Parchment Barrier (Simon & Schuster, May 2015)

Quick Hits

→  Nota Bene

1. Bill Moyers reviews the Term with Linda Greenhouse and Dahlia Lithwick, Moyers & Co., July 17, 2014 (discussing, among other things, the Roberts Court’s 1-A free expression opinions)
2. Eugene Volokh, “Federal bill to restrict the content of gun advertising,” The Volokh Conspiracy, July 17, 2014

News Stories, Editorials & Op-eds

• Wayne D. Watson, “CSU’s anti-bullying policy is not anti-First Amendment,” Chicago Sun-Times, July 21, 2014
• “NMSU Plans To Establish A ‘Free Speech Task Force,‘” KRWG, July 21, 2014
• Editorial, “Free speech, unintended consequences,” The Telegraph (Nashua), July 21, 2014
• Matt Kibbe, “Democrats fear free speech because they fear the grassroots,” Washington Examiner, July 21, 2014
• Cheryl Sullenger, “Massachusetts Gov With Ties to Planned Parenthood Trying to Shut Down Pro-Life Free Speech
• ,” Life News, July 21, 2014
• Editorial, “First Amendment trumps ‘publicity’,” Tyler Morning Telegraph, July 21, 2014
• Olaf Childress, “Outspoken Publisher Wins a Victory for Free Speech,” American Free Press, July 21, 2014
• Editorial, “County should stop its attack on free speech,” Stillwater News Press, July 20, 2014
• Drew Johnson, “Opie & Anthony fans get a lesson on the First Amendment,” Washington Times, July 18, 2014
• Mike Norman, “Free speech might make people uncomfortable,” Star-Telegram, July 17, 2014
• “Anti-gay group claims free speech rights violated by Waubonsee Community College,” The Beacon News, July 17, 2014

Last Scheduled FAN Column: FAN #23: “Paul Smith & Erin Murphy Debate Campaign Finance Law“

Next Scheduled FAN Column: FAN #25: Wednesday, July 29th

Lanell Williams-Yulee

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. – Justice Sandra Day O’Connor (2002)

The case is Williams-Yulee v. The Florida Bar. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

A petition for certiorari has been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

→ Flashback: FAN 15, “Free Speech & Judicial Elections: The Return of Kaus’ Crocodile,” May 14, 2014

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter 

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

→ See YouTube video of TV political ad here.

State Judicial Elections 

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Conflicts in Lower Courts 

↓ On the one hand, the Third and Seventh Circuits along with the high courts of Arkansas, Oregon, and now Florida have ruled that such solicitation bars do not run afoul of the First Amendment.

↑ On the other hand, the Sixth, Eighth, Ninth, and Eleventh Circuits have ruled otherwise. (Note the irony: Florida is in the Eleventh Circuit.)

Differing Rules for Sitting Judges vs Judicial Candidates? In light of the above, counsel for the Petitioner notes: “It is not in fact certain that that the Seventh Circuit or the supreme courts of Arkansas and Oregon would align with the Florida Supreme Court in this case. Unlike here [those cases] involved solicitations by sitting judges. In the Ninth Circuit’s view, the constitutional balance may differ in cases involving incumbent candidates as compared with ‘non-judge candidates.’ [citations omitted] But we are skeptical of any constitutional distinction between incumbents and non-incumbents, which would subject competitors in a single election to different First Amendment rules.”

Andrew Pincus, lead counsel for Petitioner

First Amendment Arguments

The main First Amendment arguments advanced by counsel for the Petitioner are:

1. The primacy of electoral speech: Speech uttered during a campaign for political office is at the core of the First Amendment.
2. The solicitation ban amounts to a content restriction on political speech: “‘[A]ny restriction based on the content of the [regulated] speech must satisfy strict scrutiny,’ meaning that it ‘must be narrowly tailored to serve a compelling government interest.’ [citation omitted]. Here, there is no denying that personal solicitation bans like Canon 7C(1) ‘are content-and speaker-based restrictions on political speech’ that expressly limit what a candidate may say in the course of his or her campaign.”
3. No compelling state interest & lack of narrow tailoring: “There is little doubt that impartiality [properly understood] is a compelling state interest—but Canon 7C(1) both ‘does too much, [and] does too little, to advance’ it. On the one hand, it does too much because ‘the canon prohibits a range of [indirect] solicitations, including speeches to large groups and signed mass mailings,’ that ‘present little or no risk of undue pressure or the appearance of a quid pro quo.’ The ‘reproduction of a candidate’s signature on a contribution letter will not magically endow him or her with a power to divine, first, to whom that letter was sent, and second, whether that person contributed to the campaign or balked at the request.’ Thus ‘[n]o one could reasonably believe that a failure to respond to a signed mass mailing asking for donations would result in unfair treatment in future dealings with the judge.’ The same is true of speeches to large assemblies of voters. On the other hand, a personal solicitation ban does too little because, ‘[a]lthough the candidate himself may not solicit donations, his campaign committee may.’ . . . ‘[I]f impartiality or absence of corruption is the concern, what is the point of prohibiting judges from personally asking for solicitations or signing letters, if they are free to know who contributes and who balks at their committee’s request’ in their stead?”
4. The solicitation ban promotes favoritism: “More generally, personal solicitation bans favor ‘incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ [citation omitted] That is not an outcome this Court should countenance.”
5. The solicitation ban has a chilling effect on speech & encourages self-censorship: “[P]ersonal solicitation bans encourage candidates for judicial office to censor themselves in communications of every sort for fear that what they say may be taken as a solicitation of financial support.”

Due Dates

→ The Florida Bar’s Reply Brief is due on August 25, 2014.

→ The case will be distributed for the Conference of September 29, 2014.

→ Updates to follow as case progresses

(Hat tip to Maureen Johnston.)

 Forthcoming Book on State Judicial Elections & Campaign Advertising 

• Melinda Gann Hall, Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections (Stanford Studies in Law & Politics, Oct. 15, 2014)

Resource Materials re State Judicial Elections

Main Supreme Court Cases

1. Caperton v. A.T. Massey Coal Co. (2009) (Theodore Olson = counsel for Petitioner)
2. Republican Party of Minnesota v. White (2002) (James Bopp, Jr. = counsel for Petitioner)

C-SPAN & Other Recorded Events re Judicial Elections

• The Texas Politics Project, “Former Chief Justice Wallace Jefferson Discusses Proposals to Reform Judicial Elections in Texas,” June 11, 2014
• American Constitution Society, “Justice Marilyn Kelly on Money in Judicial Elections,” Aug. 21, 2013
• Institute for Legal Reform,”Judicial Elections: Who really gives?,” May 10, 2012
• Aspen Ideas Festival, Sandra Day O’Connor, “Insights and Ideas: Money, Politics, and Judicial Elections,” 2011
• McGeorge School of Law, “Judicial Ethics and Accountability: Financing,” June 9, 2011
• Brennan Center for Justice, “Citizens United and the Role of Campaign Financing on Judicial Elections,” June 3, 2011
• Federalist Society Panel Discussion, “Judicial Elections and Independence,” C-SPAN, Oct. 24, 2006
• American Bar Association Panel, “Judicial Elections,” C-SPAN, Aug. 12, 2002

Miscellaneous

• American Judicature Society “Judicial Selection in the States — Judicial Campaigns & Elections”
• Selected Articles on Judicial Elections, Huffington Post (2011-2014)
• Brennan Center for Justice amicus brief in support of the state in Wolfson v. Concannon (9th Cir., 2014)
• Craig Burnett & Lydia Brashear Tiede, “Voter Knowledge of Candidates’ Judicial Philosophies,” Judicature (forthcoming, 2014)
• Marisa Kwiatkowski, “Money, politics and judges: Do judicial candidates pay to play?,” Indy Star, March 15, 2014
• James L. Gibson, “Do judicial elections really stink? — Why campaign activity isn’t as damaging to judicial legitimacy as some may think,” Campaigns & Elections, Jan. 7, 2013
• Laurie Kinney & Peter Hardin, editors, The New Politics of Judicial Elections, 2011-12
• Editorial, “Judicial Elections, Unhinged,” N.Y.T., Nov. 18, 2012
• Bill Moyers, “Justice for Sale,” Bill Moyers Journal, Feb. 19, 2010
• Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections (2009)
•  Chris W. Bonneau & Melinda Gann Hall, In Defense of Judicial Elections (2009)
• David Pozen, “The Irony of Judicial Elections,” 108 Columbia L. Rev. 265 (2008)
• Paul De Muniz, “Politicizing State Judicial Elections: A Threat to Judicial Independence,” 38 Willamette L. Rev. 367 (2002)
• Roy Shotland, “Financing Judicial Elections, 2000: Change and Challenge” in Financing the 2000 Election edited by David B. Magleby (2002)
•  Anthony Champagne, “Interest Groups and Judicial Elections,” 34 Loyola L.A. L. Rev. 1391 (2000)

Quick Hits

State Judicial Elections in Recent News Stories 

• Tony Mauro, “Iowa Chief Justice Reflects on Politicization of Judicial Elections,” Legal Times, July 29, 2014
• Keith Dennen, “Judicial stumping rooted in Tennessee Constitution,” The Tennessean, July 28, 2014
• Dorothy J. Samuels, “If Judges Campaign Like Ordinary Politicians, Can We Have Impartial Courts?,” N.Y.T., July 23, 2014
• Frank Damiels III, “House Republicans blast judicial elections,” The Tennessean, July 11, 2014
• Leslie Larson, “Sandra Day O’Connor decries letting ‘cash in the court’ with judicial elections,” Daily News, July 11, 2014

Last Scheduled FAN Column: #24 — “Stephen Barnett: The Little-Known Man Behind the Well-Known Words”

Next Scheduled FAN Column: Wednesday, August 6th

The bill, titled an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, was signed earlier today by Massachusetts Governor Deval Patrick.

Pro-choice demonstrators in front of Supreme Court

The law, which is effective immediately, allows a police to order a person who “impedes” access to a reproductive health facility to stand at least 25 feet away from the entrance (or driveway) of the facility. The officer’s order will remain in place for eight hours or until the facility closes for the day (whichever is earlier). The law defines “impede”  as making it impossible or very difficult to access the clinic. If the person does not obey the order, he or she will face criminal penalties (a fine and potential jail time).  The penalties increase with each transgression. There are also penalties for threatening to harm or harming a person going to or from the facility and penalties for attempting to stop a car from accessing or leaving the facility.

The new law comes in the wake of the Supreme Court’s recent ruling in  McCullen v. Coakley, which struck down a 2007 Massachusetts buffer zone law as violative of the First Amendment.

In a prepared statement, Governor Patrick said: “I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm.”

“This bill,” said Attorney General Martha Coakley, “takes an important step toward protecting the rights of women and public safety around reproductive health facilities. We now have new tools to help ensure access to these facilities free from intimidation and threats.”

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. – Akhil Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?’”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

Sam Walker to Launch Civil Liberties Web Site

Professor Samuel Walker

Who is Samuel Walker? Well, he is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha. He is also the author of In Defense of American Liberties: A History of the ACLU (1990, 2nd ed. 1999) and Presidents and Civil Liberties from Wilson to Obama: A Story of Poor Custodians (2012), along with several other other books. While I heartedly recommend those books to you, my immediate reason for writing about Professor Walker does not involve those works. No, my concern centers around a major project he is launching on September 17th (Constitution Day).

On that day Walker will officially launch Today in Civil Liberties History, a web site calendar with civil liberties events for each day. Here are a few descriptions of the forthcoming site:

“First Amendment Fridays”

This from a recent story in the Dallas Observer:

Armed with at least his Infowars.com press pass and his smartphone camera, Frisco resident Brett Sanders is staging a one-man crusade for the Bill of Rights.

For each of the last three Fridays, Sanders, who says he is also involved in the Open Carry movement, has filmed a different entity from public sidewalks. July 11 it was federal contractor Raytheon. July 18 it was the Federal Emergency Management Agency’s Region VI office. Last week he took to the area outside the Drug Enforcement Administration’s Dallas office. In each instance Sanders is told to stop filming and a confrontation of varying level of intensity ensues.

“My main goal is to empower citizens that maybe did not know that they have a right to film in public and maybe did not know that they have a right to refuse to ID themselves if they’re not committing a crime,” Sanders says.

The story includes some tense closeup video clips of Mr. Sanders videoing federal agents.

En Banc D.C. Circuit Upholds USDA Country-of-Origin Labeling Rule

In case you missed it, the Court of Appeals, sitting en banc, handed down its ruling in American Meat Institute v. USDA (July 29, 2014). The vote was 9-2 and the lead opinion was written by Senior Circuit Judge Stephen Williams with Judge Judith Rogers concurring in part, Judge Brett Kavanaugh concurring in the judgment, and Judges Karen Henderson and Janice Rogers Brown filing separate dissents.

Here is Judge Williams’ summary:

Reviewing a regulation of the Secretary of Agriculture that mandates disclosure of country-of-origin information about meat products, a panel of this court rejected the plaintiffs’ statutory and First Amendment challenges. The panel found the plaintiffs unlikely to succeed on the merits and affirmed the district court’s denial of a preliminary injunction. On the First Amendment claim, the panel read Zauderer v. Office of Disciplinary Counsel (1985) to apply to disclosure mandates aimed at addressing problems other than deception (which the mandate at issue in Zauderer had been designed to remedy). Noting that prior opinions of the court might be read to bar such an application of Zauderer, the panel proposed that the case be reheard en banc. The full court shortly voted to do so. Order, American Meat Institute v. USDA (D.C. Cir. Apr. 4, 2014) (vacating the judgment issued on Mar. 28, 2014, and ordering rehearing en banc). We now hold that Zauderer in fact does reach beyond problems of deception, sufficiently to encompass the disclosure mandates at issue here

→ See Professor Eugene Volokh’s commentary here

Loeb School Seeks 1st Amendment Award Nominees

MANCHESTER: “The Nackey S. Loeb School of Communications seeks to honor New Hampshire residents or organizations who have worked to protect free speech and free press. 

Nominations are open for the school’s 12th annual First Amendment Award, honoring diligence in protecting free press and free speech liberties. The recipient will be recognized Nov. 12th at a gala at the Radisson Hotel in Manchester. 

A committee of judges chooses the recipient from public nominations. First Amendment recipients receive a bronze eagle sculpture created by Mrs. Loeb and a $1,500 award. 

Nominations forms are available at www.loebschool.org. The deadline for nominations is Sept. 8th. Event tickets go on sale Sept. 12th.” (Source & more info here)

Back in Print: Princeton University Press Reissues First Amendment Books

From the publisher: “The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.”

• C. Edwin Baker, Advertising and a Democratic Press
• Steven Shiffrin, The First Amendment, Democracy, and Romance

  Professor Leslie Kendrick

Law Reviews: Recent Publications

• Leslie Kendrick, “Free Speech and Guilty Minds,” Columbia Law Review
• Jennifer A. Heerwif & Katherine Shaw, “Through a Glass, Darkly: The Rhetoric and Reality of Campaign Finance Disclosure,” Georgetown Law Journal 
• Thomas E. Kadri, “Fumbling the First Amendment: The Right of Publicity Goes 2–0 Against Freedom of Expression,” Michigan Law Review

Quick Hits

Recent Posts by Professor Steven Shiffrin

• “The Supreme Court’s Coming Attack on Public Employee Unions,” Religious Left Law, July 28, 2014
• “Vulnerable Women Seeking Abortion and Scalia’s Belief That Harassment is a First Amendment Right,” Religious Left Law, July 1, 2014
• “Free Speech for Those the Court Loves,” Religious Left Law, June 30, 2014

→ Note: Professor Shiffrin’s next book is titled What’s Wrong with the First Amendment. Stay tuned. (See FAC 4 (First Amendment Conversations): “Steve Shiffrin, the Dissenter at the First Amendment Table“)

News Stories & Op-Eds

• Heather Clark, “City Pays $50,000 in Attorney’s Fees for Violating First Amendment Rights of Christians,” Christian News, Aug. 6, 2014 (“A city in Kansas has payed $50,000 in attorney’s fees after a court ruled that it had violated the First Amendment rights of Christians who sought to distribute materials about their soccer camp outside of a city-owned soccer complex.”)
• Eugene Volokh, “Speech as evidence, and rap videos,” The Volokh Conspiracy, Aug. 4, 2014
•  Zach Weissmueller, “Bringing the First Amendment into the 21st Century,” Reason, Aug. 3, 2014
• Nermeen Arastu & Diala Shamas, “Stop spying on American Muslims who exercise their First Amendment rights,” Newsday, Aug. 4, 2014
• Bill Dawers, “Free speech ruling puts Savannah’s tour guide test to the test,” Savannah Now, Aug. 3, 2014

  Gene Policinski

• Gene Policinski, “Seeking the ultimate ‘redress of grievances,’” The Morning Sun, Aug. 2, 2014
• Mary C. Tillotson, “Some Anti-Bullying Policies Disrespect Free Speech,” Human Events, Aug. 1, 2014
• Beckett Adams, “Harry Reid just made sure the Senate will deal with amending the Constitution first thing when it gets back from recess,” The Examiner, Aug. 1, 2014
• Claire Zillman, “Corporations have free speech rights, except when it comes to meat,” Fortune, July 31, 2014
• Eugene Volokh, “U.S. Commission on Civil Rights member, on university speech codes,” The Volokh Conspiracy, July 30, 2014
• Katie Mulvaney, “Judge, citing First Amendment, overturns R.I. union official’s cyberstalking conviction,” Providence Journal, July 30, 2014
• Andy Mehalshick, “Questions Raised About First Amendment Violation In Aftermath of Radio Talk Show Host’s Comments,” PA, July 30, 2014
• Dan McQuade, “Del. Beach Trinket Shop Owner Loses First Amendment Fight,” News + Opinion, July 29, 2014
• Barry J. Peek & Hanan B. Kolko, “Marijuana Advertising and the First Amendment,” New York Law Journal, July 11, 2014
• Geoffrey Stone, “Understanding the Supreme Court’s Abortion-Protest Decision,” Huffington Post, June 27, 2014

Last Scheduled FAN Column: #25 – “High Court again asked to intervene in state judicial elections”

Next Scheduled FAN Column: #27, Wednesday, August 13th

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. Cohen, James M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

→ Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

Seventeen and a half years for translating a document? Granted, it’s an extremist text.                                                                                      – David Cole

Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all.                             – Rachel Levinson-Waldman

The case is: Mehanna v. United States.

Tarek Mehanna

The issue is: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

→ Summary of relevant facts as stated by the appellate court: “In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

“The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa’ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa’ida-generated media and materials supportive of al-Qa’ida and/or jihad.”

→ The charges against the Defendant included:

• one count of conspiracy to provide material support to al-Qa’ida;
•  one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. § 956 and  § 2332
• one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. § 956 and § 2332
• and one count of conspiracy to kill persons in a foreign country

→ ACLU of Massachusetts press release re trial verdict: “Mehanna Verdict Compromises First Amendment, Undermines National Security,” Dec. 20, 2011: “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.”

Op-Ed Commentaries 

• David Cole, “39 Ways to Limit Free Speech,” N.Y. Rev. of Books, April 19, 2012
• Andrew F. March, “A Dangerous Mind?,” N.Y.T., April 21, 2012
• Glenn Greenwald, “The real criminals in the Tarek Mehanna case,” Salon, April 13, 2012
•  Rachel Levinson-Waldman, “The Narrowing of Tarek Mehanna’s Liberties Has Consequences for Us All,” Huffington Post, May 15, 2012

On Appeal before First Circuit

In an opinion by Judge Bruce Selya, a three-judge panel of the First Circuit denied the Defendant Tarek Mehanna‘s First Amendment challenge. Here is how Judge Selya (former chief judge of the United States Foreign Intelligence Surveillance Court of Review) began his opinion:

Terrorism is the modern day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

And here is how Judge Selya closed his opinion in ruling against the Defendant Tarek Mehanna:

Cases like this one present a formidable challenge to the parties and to the trial court: the charged crimes are heinous, the evidentiary record is vast, the legal issues are sophisticated, and the nature of the charges ensures that any trial will be electric. In this instance, all concerned rose to meet this formidable challenge. The lawyers on both sides performed admirably, and the able district judge presided over the case with care, skill, and circumspection. After a painstaking appraisal of the record, the briefs, and the relevant case law, we are confident — for the reasons elucidated above — that the defendant was fairly tried, justly convicted, and lawfully sentenced.

→ Amici on behalf of the Petitioner in the First Circuit included:

• Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts
• Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights
• Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National, Association of Criminal Defense Lawyers
• E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East

Judge Bruce Selya

The government was represented by Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice.

→ Sabin Willett is the counsel of record representing the Defendant Tarek Mehanna in his petition to the Court. In his petition, Mr. Willett’s First Amendment arguments include the following:

1. “In Humanitarian Law Project, the Court addressed the important question of whether speech could be criminalized as provision of material sup- port in the form of a “service” to an FTO. Deciding that such speech can be unlawful when it takes the form of directly-interactive teaching, the Court interpreted §2339B as imposing criminal liability for speech that is a “service” if that speech is sufficiently “coordinated” with the FTO. This Court did not further define ‘coordination,’ nor hold that all “coordinated” speech could be criminalized consistent with the First Amendment. . . . Outside the narrow factual context of Humanitarian Law Project, the legal contours of ‘coordination’ remain a riddle. The word does not appear in any relevant section of the statutes. The decision uses “coordination” to describe the specific conduct found unlawful in that case, but provides no general definition, and leaves open that some levels of ‘coordination’ may be lawful.”
2. “Petitioner argued below that a constitutional definition of ‘coordination’ requires an inquiry into the relation of the speaker to the FTO, and cannot be based in the content of his speech. If an FTO directs the defendant to write, the defendant’s compliance might provide a service that the Constitution does not protect, but that service would lie in compliance, not content.”
3. Certain counts of the Petitioner’s conviction violated his right of association.

→ The government’s brief in opposition can be found here.

Historical Aside re Humanitarian Law Project

The case for the government was argued by Solicitor General Elena Kagan

The case for the Humanitarian Law Project was argued by Professor David Cole

Transcript of oral argument here

Interview with Robert Post re his latest book

Dean Robert Post’s latest book is now out. It is entitled Citizens Divided: Campaign Finance Reform & the Constitution and contains commentaries by Pamela Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati.

Here is the publisher’s description of the book:

“The Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission, which struck down a federal prohibition on independent corporate campaign expenditures, is one of the most controversial opinions in recent memory. Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.

Robert Post

“Post interprets constitutional conflict over campaign finance reform as an argument between those who believe self-government requires democratic participation in the formation of public opinion and those who believe that self-government requires a functioning system of representation. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many implications of this simple but profound insight. Critiquing the First Amendment reasoning of the Court in Citizens United, he also shows that the Court did not clearly grasp the constitutional dimensions of corporate speech.

“Blending history, constitutional law, and political theory, Citizens Divided explains how a Supreme Court case of far-reaching consequence might have been decided differently, in a manner that would have preserved both First Amendment rights and electoral integrity.”

→ My Q & A interview with Dean Post appears in SCOTUSblog and can be found here.

Study shows US data sweep harms press freedom

According to a July 28th news story in the Mail & Guardian:

“A study has found that surveillance efforts aimed at thwarting terrorist attacks have undermined press freedom — and broader democratic rights. Large scale surveillance by the United States government has begun to have an impact on press freedom and broader democratic rights, a recently released study showed.The report, released on July 28 by the American Civil Liberties Union and Human Rights Watch, found that the vast surveillance efforts aimed at thwarting terrorist attacks have undermined press freedom, the public’s right to information as well as rights to legal counsel. “The work of journalists and lawyers is central to our democracy,” said report author Alex Sinha. ‘When their work suffers, so do we.’

“In the current atmosphere, sources are more hesitant to discuss even unclassified issues of public concern, fearing a loss of security clearances, dismissal or criminal investigation. The report said some reporters are using elaborate techniques to avoid surveillance, such as encrypted communications, the use of disposable phones or avoiding the internet and other networks entirely. The journalists said they feared coming under suspicion for doing their jobs.”

→ See Press Release and Report (“How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy”) here.

Senate to Vote on Amendment to First Amendment

A procedural vote has been scheduled for September 9, 2014 concerning a proposed Amendment to the First Amendment. More on this next month.

Quick Hits

Scholarly Articles

• Tamara Piety, “The Heroic Corporation and First Amendment Romanticism: A Response to Professors Redish and Neuborne,” Texas L. Rev./See Also (2014)

→ Forthcoming from Professor Piety: “Paternalism and the Regulation of Commercial Speech” (paper presented at Freedom of Expression Scholars Conference, May 4, 2014)

• David S. Han, “The Mechanics of First Amendment Audience Analysis” William & Mary L. Rev. (2014)
• Thomas Kadri, “The Tools of Political Dissent: A First Amendment Guide to Gun Registries,” Mich. L. Rev./First Impressions (2014)
• Timothy F. Brown, “Lethal Injection and the Right of Access: The Intersection of the Eighth and First Amendments” (2014)
• Benjamin Welch, “An Examination of University Speech Codes’ Constitutionality and Their Impact on High-Level Discourse” (2014)
• Kyle Langvardt, “The Replicator and the First Amendment” (2014)

News Stories, Editorials & Op-Eds

Nota bene: Two Cases — 9th & 3rd Circuit Rulings

→ Eugene Volokh, “Can the federal government bar First Amendment overbreadth defenses in criminal cases?,” Volokh Conspiracy, Aug. 12, 2014. In response to the title of his post, Professor Volokh noted:

That’s what United States v. Szabo (9th Cir. July 28, 2014) (2-to-1) seems to imply. William J. Szabo was prosecuted for violating a Veterans Administration regulation banning “disturbances” at VA facilities. The panel unanimously found that the regulation was constitutional as applied to Szabo’s speech, “because his conduct involved a ‘true threat’ of violence.” But Szabo also claimed that the speech restriction was unconstitutionally overbroad — something that is generally allowed in First Amendment cases.

 Yet the majority held that Szabo couldn’t bring this challenge, because a federal statute expressly provided that such regulations could only be challenged in the U.S. Court of Appeals for the Federal Circuit. Szabo was arguing that the regulation was unconstitutionally overbroad before the federal district court that tried him, and then before the Ninth Circuit; that, the court held, was impermissible. “‘[So long as] Congress provides for a ‘special statutory review proceeding’ in one specific court, challenges to the administrative action must take place in the designated forum.’”

This would potentially have quite broad implications. It would let Congress shunt all overbreadth objections to federal regulations to a specialized court, and thus bar First Amendment overbreadth defenses in federal prosecutions for violating particular regulations, far outside the specific area of VA regulations or even regulations dealing with conduct on federal property.

And I think it would also let Congress similarly bar First Amendment overbreadth defenses in all federal criminal prosecutions, simply by providing that any challenges to the constitutionality of a statute be brought before a specialized court. The First Amendment overbreadth defense available in federal criminal cases would thus be basically optional, freely removable at Congress’s discretion.

* * * *

→ Ruthann Robson, “Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment,” Constitutional Law Prof Blog, Aug. 12, 2014. Here is how Professor Robson summarized the attorney advertising case:

The New Jersey Supreme Court’s Guideline 3 governing attorney advertising provides: “An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”

The Third Circuit’s opinion in Dwyer v. Cappell found this guideline violated the First Amendment’s protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985). . . . 

The case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3 — which may have been specifically targeted at him — by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency.

→ The opinion for the Court was by Circuit Judge Thomas Ambro.

* * * *

• Elaine Watson, “First Amendment challenge to Vermont GMO labeling law does not stand up, claims state AG,” Food, Aug. 12, 2014
• Lyle Denniston, “Constitution Check: Do college athletes’ legal rights conflict with the First Amendment?,” Constitution Daily, Aug. 12, 2014
• Deanna Isaacs, “Did a controversial tweet cost Steven Salaita his U. of I. professorship?,” Reader, Aug. 12, 2014
• “Resist move to curb freedom of speech,” Daily Star, Aug. 12, 2104
• Eugene Volokh, “First Amendment right to videotape police extends even to probationers, and to one’s own home as well as public places,” Volokh Conspiracy, Aug. 11, 2014 (opinion: Crago v. Leonard)
• Gerald Furnkranz, “Siphoning away American’s freedom of speech Part 5 of 7, Bullying,” Examiner.com, Aug. 11, 2014
• Blair Homer, “U.S. Senate Poised To Take On Citizens United,” Northeast Public Radio, Aug. 11, 2014
• Editorial, “Amending the First Amendment,” Las Vegas Review-Journal, Aug. 10, 2014
• Michael Ryan, “225 Ways: Protect the First Amendment and rights it gives,” Lubbock Avalanche-Journal, Aug. 10, 2014
• Rick Manning, “Senate to vote on First Amendment repeal in September,” The Star, Aug. 9, 2014

Last Scheduled FAN, #26: “Akhil Amar on the “First” Amendment“

Next Scheduled FAN, # 28: Wednesday, August 20th

Heed their rising voices.

In light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri“) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) – The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

Professor Randy Kozel

Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools.

But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.)

Now consider this: “[W]ithin the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.”

So contends Notre Dame Law School Professor Randy Kozel in a draft of an article titled “Second Thoughts About the First Amendment.” As his research reveals, “in recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.”

And why? What accounts for this purported demise of stare decisis? “The best explanation for this phenomenon,” say Professor Kozel, “is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.”

And is all of this a problem? Here is how the former Kozinski-Kennedy law clerk turned law professor answers that question: “Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.”

With a guarded measure of nuance, Professor Kozel adds: “For some, this state of affairs may be unobjectionable. There is no denying that robust expression is a core tenet of American legal and political culture. Still, there is something to be said for stare decisis, even when continuity comes at a hefty price.”

→ Of course there is more, much more in this thoughtful work-in-progress. I urge readers to take a look at it and send along your thoughts. Who knows, it might even make for an interesting topic for a future First Amendment salon?

Speaking of that salon, I may soon have some news on that front. Stay tuned.

Another great quote from Justice Jackson

[T]he very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.

– Justice Robert Jackson, in-chambers opinion in Williamson v. United States (1950):

→ Hat tip to Eugene Volokh

Two New Books

Professor Rick Hasen

Two books, one just published and the other to be available next week, should be of interest to FAN readers.

→ The first book is by election law expert Professor Rick Hasen and is entitled Legislation, Statutory Interpretation, and Election Law. The Table of Contents can be found here. Of particular interest to those who follow First Amendment law in the campaign finance context are the following chapters (pp. 319-400):

• 13 — “Introduction to Campaign Finance: Spending Limits from Buckley to Citizens United”
• 14 — “Campaign Contribution Limits from Buckley to Citizens United and Beyond”
• 15 — “Campaign Finance Disclosure”
• 16 – “Public Financing”

Professor Danielle Citron

→ The other book is by Professor Danielle Citron and is entitled Hate Crimes in Cyberspace. Here is the publisher’s summary:

Most Internet users are familiar with trolling—aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. Less familiar but far more serious is the way some use networked technologies to target real people, subjecting them, by name and address, to vicious, often terrifying, online abuse. In an in-depth investigation of a problem that is too often trivialized by lawmakers and the media, Danielle Keats Citron exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. A refutation of those who claim that these attacks are legal, or at least impossible to stop, Hate Crimes in Cyberspace reveals the serious emotional, professional, and financial harms incurred by victims.

Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs.

Hate Crimes in Cyberspace rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.

Senate to Vote on Amendment to First Amendment

A procedural vote has been scheduled for Monday, September 8, 2014 at 6 p.m. EDT concerning a proposed amendment to the First Amendment. More on this next month.

Lauren Bacall & Humphrey Bogart lead a Committee for the First Amendment march in Washington, D.C., Oct. 27, 1947  (AP photo)

Lauren Bacall — First Amendment Activist

“In 1947, as the “Red Scare” enveloped America, [Bacall and Bogart] joined the Committee for the First Amendment. The CFA was a star-studded group of Hollywood liberals who opposed the tactics of J. Parnell Thomas’ House Committee on Un-American Activities, which had subpoenaed 43 Hollywood figures who were allegedly Communists to testify about their politics; 19 said they would not cooperate, and 11 of them were called before the committee, facing the possibility of jail time. (One, Bertolt Brecht, ultimately decided to testify and then leave the country, hence the term “the Hollywood 10.”) On Oct. 26, 25 CFA members—the Bogarts the most famous—chartered a flight to Washington to sit in on the following day’s hearings, meet with members of Congress and present a petition defending their colleagues’ First Amendment rights. They stopped in major cities along the way to try to rally public support behind their colleagues, and massive crowds greeted them everywhere.”

→ Scott Feinberg, “Lauren Bacall, Political Activist: She Knew How to Whistle… and Speak Her Mind,” Hollywood Reporter, Aug. 20, 2014

Press Groups Rally Behind James Risen 

This from Catherine Taibi’s article in the Huffington Post (Aug. 15, 2014):

James Risen

“Press freedom organizations submitted a petition with more than 100,000 signatures to the US Department of Justice Thursday in support of New York Times reporter James Risen.The petition demanded that the government stop all legal action against Risen, who has been involved in a six-year battle for press freedom, McClatchy DC reported Friday.Risen has been ordered by the DOJ to testify against one of his alleged sources, former CIA agent Jeffrey Sterling, who is believed to have given him confidential information about the CIA for his 2006 book State of War. Prosecutors believe that Sterling gave Risen specific details about a failed CIA operation in Iran that then appeared in his book. Risen has refused to name his source, stating that he would rather go to jail than “give up everything I believe in.”In a news conference at the National Press Club in Washington Thursday, Risen said that his refusal to give up the name was ‘for the future of journalism.’”

→ See also Katherine Fung, “James Risen: Obama Is ‘Greatest Enemy To Press Freedom In A Generation‘” Huffington Post, Aug. 17, 2014

Center takes applications for James Madison Award 

“The Scripps Howard First Amendment Center in the School of Journalism and Telecommunications at the University of Kentucky College of Communication and Information annually recognizes a Kentuckian who has made an outstanding contribution to the First Amendment.
 
The James Madison Award, created in 2006, honors the nation’s fourth president, whose extraordinary efforts led to the ratification of the Bill of Rights. The center at the University of Kentucky is seeking nominations for its 2014 award.
 
The nomination deadline is Sept. 15. The winner will be honored at the annual First Amendment Celebration on Oct. 8.”

“Nominees must have significant ties to Kentucky, and their efforts must have resulted in the preservation or expansion of freedom of the press and/or freedom of speech. The award recognizes a long-term commitment to these ideals.”

→ Nominations should be sent to Mike Farrell, Scripps Howard First Amendment Center, School of Journalism and Telecommunications, 220 Grehan Building, University of Kentucky, Lexington, KY 40506-0042, or emailed to farrell@uky.edu. [Source here]

Government Ordered False Information

Whatever the standards applied to professional speech, it seems obvious that government has no legitimate interest in compelling doctors to give false information to patients. We need not wait for a Satanist to have an abortion and be provided with false information. To the extent [that] any of the laws in the 35 states with special informed consent laws for the abortion context require that false or misleading information be provided, . . . the First Amendment stands in the way. 

– Steve Shiffrin, “Satanists, Hobby Lobby, and Free Speech,” ReligiousLeft.com, Aug. 18, 2014

→  Re a discussion of compelled speech of doctors in the abortion context with citations to the cases and relevant literature, see Stuart v. Loomis (MD, NC, Jan. 17, 2014) (per Dist. Ct. Judge Catherine Eagles)

Third Circuit Ruling re Police Campaign Contributions 

Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union’s political action committee?  The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment. 

→ Opinion by Judge Thomas Hardiman.

→ Thomas W. Jennings successfully argued the case for the Appellants

→ Ruthann Robson, “Third Circuit Holds Philadelphia Police Campaign Contribution Rule Violates First Amendment,” Constitutional Law Prof Blog, Aug. 19, 2014

The First Amendment in Ferguson 

→  Margaret Gillerman, “Judge denies ACLU motion for an order to stop police tactics,” St. Louis Post-Dispatch, Aug. 18, 2014

A federal judge Monday night denied a motion by the American Civil Liberties Union for a temporary restraining order to stop police from requiring people to keep moving on sidewalks and thoroughfares in Ferguson unless they’re gathered in a designated protest area. . . . The suit by the ACLU was filed Monday against St. Louis County, Highway Patrol Superintendent Ronald Replogle and five individual unnamed police officers. The ACLU says that the practice orders “people who are violating no law … to refrain from gathering or standing for more than five seconds on public sidewalks.”The suit also said that the measure places “restrictions on the ability of the media to witness and report on unfolding events.”Missouri Attorney General Chris Koster defended the law enforcement measures, including the designated protest area. He said the measures were designed to protect public safety in Ferguson. Koster’s office said the action by U.S. District Judge Catherine Perry clears the way “for law enforcement officers to continue their efforts to protect the people and property of Ferguson.”

→ ACLU of Missouri complaint in Hussein v. County of St. Louis & City of Ferguson (“This is civil rights action filed by Mustafa Hussein, an individual who has recorded the interactions of the police and demonstrators on public streets and sidewalks within the City of Ferguson and who would like to do so in the future. He brings suit pursuant to 42 U.S.C. § 1983 to challenge intimidating demands and direct orders (made by Defendants, their officers or agents, or those working in concert with them) that members of the public and media stop recording interactions between the police and the public in Ferguson, Missouri.”) ACLU lawyers: Anthony Rothert, Grant Doty & Gillian Wilcox.

* * *  *

I support the First Amendment like crazy gun people support the Second Amendment, and I’ll do anything for the First Amendment,” said Chappelle-Nadal, a Missouri state senator (Dem.).

• Christine Conetta, “Missouri State Senator Reminds Police, ‘We Have A First Amendment Right‘,” Huffington Post, Aug. 19, 2014
• Jose Diaz-Balart, “First Amendment rights in question in Ferguson,” MSNBC, Aug. 19, 2014 (video clip interview with reporters Amy Nelson & Ryan Reilly)
• Associated Press, “D.C.-based journalist among latest arrests in Ferguson,” Aug. 19, 2014
• Will Baude, “Is there any good argument against the right to record the cops?,” The Volokh Conspiracy, Aug. 18, 2014
• Leonard Pitts, Jr., “First Amendment suspended in recent police brutality,” Houston Chronicle, Aug. 17, 2014
• Eugene Volokh, “The Missouri Highway Patrol, St. Louis County, and the City of Ferguson agree that public has the ‘right to record public events’,” The Volokh Conspiracy, Aug. 15, 2014
• Alona Sistrunk, “Know Your Rights, Ferguson, Missouri,” ACLU Website, Aug. 15, 2014
• Catherine Talbi, “Press Freedom Groups Condemn Police Treatment Of Media In Ferguson,” Huffington Post, Aug. 14, 2014
• Gene Policinski, “First Amendment: Media and Missouri: What the heck is going on?,” Gazette Xtra, Aug. 14, 2014
• William Freivogel, “Police Force and First Amendment Trespasses in the Ferguson Protests,” St. Louis Public Radio, Aug. 14, 2014
• Eugene Volokh, “First Amendment right to videotape police extends even to probationers, and to one’s own home as well as public places,” The Volokh Conspiracy, Aug. 11, 2014

The sign that gets no protection from the First Amendment — so ruled the 6th Circuit

Quick Hits

Other News Stories, Editorials, Op-eds & Blog Posts 

• James F. McCarthy, “Garfield Heights man’s three-year First Amendment sign fight ends in defeat,” The Plain Dealer, Aug. 19, 2014
• Ryan Poppe, “Perry’s Legal Team Says Indictment Violates Governor’s Right To Free Speech,” Texas Public Radio, Aug. 19, 2014
• Merrill Hope, “Dallas Bans Free Speech, Overpasses For America Sues,” Breitbart, Aug. 19, 2014
• Travis Weber, “A speech code for the pulpit?,” Washington Times, Aug. 15, 2014
• Ruthann Robson, “ConLaw Profs Pen Letter Criticizing University of Illinois Rescission of Offer to Academic for Tweets,” Constitutional Law Prof Blog, Aug. 14, 2014
• Eugene Volokh, “The First Amendment protects even Nazi, Communist, and Islamic State flags,” The Volokh Conspiracy, Aug. 13, 2014

Last Scheduled FAN Column: # 27 — “Humanitarian Law Project petition before High Court”

Next Scheduled FAN Column: # 29 — Wednesday, August 27, 2014

This is beyond anything we’ve seen.

                                  – Chuck Hagel, Aug. 21, 2014

The Threat

→ Defense Secretary Chuck Hagel told reporters at the Pentagon: “They are an imminent threat to every interest we have, whether it’s in Iraq or anywhere else.”

Secretary of Defense Chuck Hagel

“Asked if the hardline Sunni Muslim organization posed a threat to the United States comparable to that of the attacks of Sept. 11, 2001, Hagel said it was ‘as sophisticated and well-funded as any group we have seen.’”

→ According to a report in The Hill, ISIS, also known as Islamic State, “has long threatened to carry out a catastrophic attack on American soil, with a spokesman recently boasting that the militant group would fly its flag over the White House.”

→ Senator Jim Inhofe (R-Okla.) Now is in “the most dangerous position we’ve ever been in.” ISIS members, he added, are “rapidly developing a method of blowing up a major U.S. city and people just can’t believe that’s happening.” 

Recruiting in the U.S.? 

→ “The director of the FBI visited Colorado this week and detailed how the terror organization ISIS is recruiting Americans to take up their cause.It’s not just the recruitment of Americans that’s concerning to the FBI, it’s the method of recruitment — the Internet. FBI Director James Comey said how they are recruiting new members is getting the attention of the U.S. government.” [Source: CBS News]

→ James Comey: “We have seen an emergence since I was last in government of the people we call home grown violent extremists.” [Source: CBS News]

The Law

The Newseum in Washington, D.C.

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” – Schenck v. United States (1919)

→ See also: Dennis v. United States (1951) (“In each case [courts] must ask whether the gravity of the `evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”)

→ See also: Yates v. United States (1957) (re “advocacy of actions” versus advocacy in the abstract).

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” – Brandenburg v. Ohio (1969)

 Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. . . .  Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not ‘necessary to further that interest.’ The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. . . .  We are convinced that Congress was justified in rejecting that view.  . .  . We see no reason to question Congress’s finding . . . ” – Holder v. Humanitarian Law Project (2010)

→ See also: Geoffrey Stone. Perilous Times: Free Speech in Wartime (2004)

→ See also Richard A. Posner, Not a Suicide Pact: The Constitution in Time of National Emergency (2006) and Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007)

→ See generally “Symposium, Free Speech in Wartime,” 36 Rutgers Law Journal 821-951 (2005) (contributors: Geoffrey Stone, Earl Maltz, Ronald Collins & David Skover, Adrian Vermeule, Leonard Niehoff, Floyd Abrams, David Strauss, Nadine Strossen, Eric Foner, David Rabban, and Raymond Solomon).

[W]e decline to carve out from the First Amendment any novel exception.                     – Chief Justice John Roberts (2010)

When we talk about exceptions to the First Amendment’s guaranty of freedom of expression, Justice Frank Murphy’s famous 1942 dictum in Chaplinsky v. New Hampshire comes to mind:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ―fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 

Note that the list of exceptions he offered was an incomplete one. To much the same effect as Chaplinsky, in his majority opinion in United States v. Stevens (2010) Chief Justice John Roberts declared:

From 1791 to the present, however, the First Amendment has ―permitted restrictions upon the content of speech in a few limited areas, and has never ―include[d] a freedom to disregard these traditional limitations.  . . . These historic and traditional categories [are] long familiar to the bar, . . . [and include] obscenity, . . . defamation, . . . fraud, . . . incitement, . . . and speech integral to criminal conduct . . . . [They] are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

Against that backdrop, the Chief Justice emphasized: “we decline to carve out from the First Amendment any novel exception.” He also cautioned: “cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The question, of course, is exactly how many “well-defined and narrowly limited classes” of exceptions are there (Chaplinsky), or  precisely how many “historic and traditional categories” of speech fall outside of the First Amendment (Stevens)?

To answer that question it is important to note that not all of the categories listed by the Chief Justice are single-subject exceptions. For example, consider the “speech integral to criminal conduct” category. That exception itself consists of more than a few particularized exceptions. And then there are the other exceptions that were left unmentioned.

So many exceptions

Mindful of the above, and as I have noted elsewhere, here is a list of the additional (or more particularized) types of expression that have been deemed unprotected:

(1)       blackmail

(2)       bribery

(3)       misleading commercial expression

(4)       incitement to lawless action

(5)       expression that violates an intellectual property right

(6)       criminal conspiracy expression

(7)       threatening expressions

(8)       expression that endangers national security

(9)       insider trading expression

(10)     perjurious expression

(11)     harassment in the workplace expression

(12)     expression in contempt of court

(13)     plagiaristic expression

(14)     criminal solicitation (e.g., prostitution or murder for hire)

(15)     child pornography

(16)     speech that amounts to bullying

(17)     intentionally false speech likely to create a dangerous public panic

(18)     intentionally misrepresenting oneself as a government official

(19)  intentionally false material statements made to voters concerning authorship or endorsement of political campaign materials

(20)     certain kinds of intentionally false statements made about a political or public figure

(21)     certain kinds of prisoner expression

(22)     certain kinds of government employee expression

(23)     certain kinds of government funded expression

(24)     certain kinds of student expression

(25)     certain kinds of expression by those in the military

(26)     expression deemed secret owing to a private contract or law

(27)      certain kinds of expression expression that unfairly places another in a false light

(28)     intentional expression that causes emotional distress

(29)     expression in violation of anti-trust laws

(30)      certain kinds of expression that cause prejudicial publicity that interferes with a fair trial

(31)     intentionally disclosing the identity of secret government agents

(32)     certain kinds of expression that invade the privacy of another

(33)     certain kinds of expression limited by time, place, and manner restrictions

(34)     certain kinds of expression that involves intentional lying

(35)     certain kinds of expression by sitting judges

(36)     certain kinds of expression aired on the public airwaves

(37)     certain kinds of panhandling

(38)     certain kinds of telemarketing

(39)     certain kinds of speech harmful to minors

(40)     certain kinds of commercial solicitation (e.g. lawyers soliciting business)

(41)   certain kinds of expression concerning the unauthorized practice of some licensed profession (e.g., medicine or law)

(42)     certain kinds of intentional lying to government officials (e.g., lying to Congress while under oath or false police reports) and

(43)     certain kinds of evidence introduced into court and in courtroom expression governed by the rules of evidence.

And what of revenge porn & cyber harassment?

Are there more? Perhaps. Might some of the above ones now be deemed unconstitutional? Perhaps. That said, my point is that the lists offered in Chaplinsky and Stevens (among other Supreme Court opinions) give the impression that the number of exceptions to the First Amendment is actually far fewer than may well be the case.

In all of this, however, I do not mean to undermine a robust commitment to free speech freedom — a commitment well beyond what is fashionable in many circles of academia today. Still, if originalism is to be a significant and even determinative guide here, we must be duly mindful of its true dimensions. This is not to say the results reached by the Roberts Court in several First Amendment cases could not otherwise be justified, but rather that some of the Court’s originalist language needs to be more fully stated and explained.

Justices asked to review Secondary Effects case 

→ The case is: City of Indianapolis, Indiana v. Annex Books, Inc. (docket #: 13-1441)

→ The facts: “Indianapolis requires adult bookstores to remain closed between the hours of midnight and 10 a.m. every day, and all day Sunday. Other retail businesses are not subject to these restrictions. In earlier rounds of this litigation, Indianapolis contended that closure would curtail secondary effects, but we concluded that the evidence it offered was weak, contested in material respects, or concerned different kinds of businesses or different kinds of laws, such as minimum distances between adult outlets rather than closure. . . . The district court then held a trial. Indianapolis gave a single justification: fewer armed robberies at or near adult bookstores. The district court found this adequate and entered judgment for the City.”

→ The issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. (1986) and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically-significant empirical evidence.

→ District Court opinion here (denying First Amendment challenge)

→ When the case was before a 7th Circuit panel, Judge Frank Easterbrook sustained the First Amendment challenge. In an opinion for the court, Judge Easterbrook ruled that the “current justification is weak as a statistical matter. The City did not use a multivariate regression to control for other potentially important variables, such as the presence of late-night taverns. The change in the number of armed robberies is small; the difference is not statistically significant. The data do not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores, pharmacies, and convenience stores, that are not subject to the closing hours imposed on bookstores. And most of the harm of armed robberies falls on the bookstores (and their patrons) rather than on strangers. . . . That the City’s regulation takes the form of closure is the nub of the problem. Justice Kennedy, whose vote was essential to the disposition of Alameda Books, remarked that ‘a city may not regulate the secondary effects of speech by suppressing the speech itself.’ . . . Indianapolis does not contend that any of the plaintiffs sells obscene material; it follows that objection to the plaintiffs’ stock in trade cannot justify closure.”

→ The prevailing lawyers in the Circuit Court:  J. Michael Murray & Steven D. Shafron

→ Counsel of record on cert petition: Scott Bergthold (co-author of Local Regulation of Adult Businesses)

→ Brief in Opposition here (Messrs. Murray & Shafron)

→ Distributed for Conference of September 29, 2014. (Hat tip to Maureen Johnston, SCOTUSblog)

ACLU lawsuit defends press right to observe executions

This from an ACLU press release:

The First Amendment guarantees the public and the press the right to witness certain government proceedings – including public executions. On August 25, 2014, the ACLU and the ACLU of Oklahoma filed a lawsuit arguing that this right was violated during the botched execution of Clayton Lockett in Oklahoma. The lawsuit was filed on behalf of The Guardian and The Oklahoma Observer, whose journalists were deprived the right to view and fully report on the execution.

→ Oklahoma Observer v. Patton – complaint here

• Matt Ford, “Who Watches America’s Executions?,” The Atlantic, Aug. 25, 2014
• Debra C. Weiss, “Does press have First Amendment right to view entire execution? ACLU sues over closed blinds,” ABA J., Aug. 25, 2014
• Ed Pilkington, “ACLU challenges Oklahoma over first amendment violation in execution,” The Guardian, Aug. 25, 2014

Ban on accepting tips for performing outside subway entrances enjoined

According to a Washington Post story: “Alex W. Young, who makes his living with a guitar and a song, says he finally got tired of being shooed away from Metro stations by police officers. He saw no harm in what he was doing — playing music for tips outside subway entrances, his instrument case open at his feet. Buskers are part of the traditional fabric of public transportation in America, Young says. And with a lawyer by his side, he has gone to federal court, intent on proving his point.”

John W. Whitehead

“Young’s lawsuit, filed July 16 in U.S. District Court in Washington, challenges Metro’s busking ban on First Amendment grounds. Although a resolution of the matter could be years away, Young won an early round in the fight: On Aug. 14, a judge issued a preliminary injunction that allows buskers to perform on Metro property while the case is pending, provided they don’t stand within 15 feet of station entrances.”

Source: Paul Duggan, “D.C.-area busker wins round in suit against Metro ban on accepting tips near stations,” Wash. Post, Aug. 21, 2014

→ The lawyer who represented Mr. Young was John W. Whitehead of the Rutherford Institute, who tags himself a “a free speech purist.” See also here re his amicus brief in Elonis v. United States (true threats case).

Reminder: Senate to vote on amendment to First Amendment

A procedural vote has been scheduled for Monday, September 8, 2014 at 6 p.m. EDT concerning a proposed amendment to the First Amendment. More on this next month.

California considering banning Confederate flag . . . and images of it

According to a news report in the Los Angeles Times:

A bill that would prohibit California from displaying or selling merchandise with the Confederate flag is headed to Gov. Jerry Brown’s desk, after getting final legislative approval in the Assembly on Thursday. The measure by Assemblyman Isadore Hall III (D-Compton) would prohibit the state from displaying or selling merchandise emblazoned with the Confederate flag. The ban would not apply to images of the flag found in books, digitial media or state museums if displayed for educational or historical purposes. Hall introduced the bill, AB 2444, after his mother, on a visit to the Capitol, saw a replica of Confederate money sold in the gift shop. The money contained a picture of the flag.The bill passed the Assembly on a bipartisan 66-1 vote, a symbol, Hall said, of “standing together united to fend off the ugly hatred of racism that’s been portrayed and demonstrated through the emblem of the Confederacy.”

The bill provides:

8195. (a) The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

(b) For purposes of this section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.

Quick Hits 

New & Forthcoming Books

• John C. Knechtle, Mastering First Amendment Law (Carolina Academic Press, 2014)
• M. Alison Kibler, Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation, 1890-1930 (U.N.C. Press, Jan. 2015)

Professor Joseph Blocher

Scholarly Articles

• Joseph Blocher, “Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment,” Duke Law Journal (2014)
• Wendy Gerwick Couture, “The Collision Between the First Amendment and Securities Fraud,” Alabama Law Review (2014)
• Martin Guggenheim, “Violent Video Games and the Rights of Children and Parents: A Critique of Brown v. Entertainment Merchants Association,” Hastings Constitutional Law Quarterly (2014)
• Jessica J. Hwang, “From Spectacle to Speech: The FirstAmendment and Film Censorshipfrom 1915–1952,” Hastings Constitutional Law Quarterly (2014) (Student Note)

New Rulings

• International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles (9th Cir., 2014) (per Noonan, J.)

→ Discussed in: Steven Schwinn, “Ninth Circuit Upholds Ban on Solicitation at LAX,” Constitutional Law Prof Blog, Aug. 24, 2014

New Court Filings

• Eugene Volokh, “UCLA First Amendment Amicus Brief Clinic brief in Petro-Lubricant Testing Laboratories, Inc. v. Adelman,” Volokh Conspiracy, Aug. 20, 2014)

News Stories, Editorials & Op-eds

States obviously have wide authority to regulate medical treatment to protect patient safety and privacy. But when these regulations involve politically motivated discrimination against disfavored viewpoints, courts must not hesitate to apply the general principles of the First Amendment.

Laurence Tribe, “The First Amendment Should Protect Disfavored Viewpoints,” New York Times, Aug. 20, 2014

* * * *

Now before the Supreme Court, Cato has joined the American Civil Liberties Union, the Abrams Institute for Freedom of Expression at Yale Law School, the Center for Democracy & Technology, and the National Coalition Against Censorship on a brief supporting Elonis’s position. We argue that Supreme Court precedent shows that (1) a subjective intent to threaten is an essential element of a “true threat,” (2) requiring a finding of subjective intent is in line with First Amendment principles, and (3) drawing the line between threat and protected speech carefully is particularly important given the rise of the Internet as a forum of communication—one where it can be easy to take things out of context.

Ilya Shapiro, “The First Amendment Protects Random Ugly Rap Lyrics,” Cato, Aug. 22 2014

* * * *

• Katrina vanden Heuvel

  Micheal Beckel, “Democrats embrace ‘McCutcheon’ decision,” Center for Public Integrity, Aug. 26, 2014

• Katrina vanden Heuvel, “Threats to a free press, from Ferguson to the White House,” Washington Post, Aug. 26, 2014
• Leslie Parrilla, “First amendment group investigating Colton city manager firing,” The Sun, Aug. 26, 2014
• Elizabeth Harrington, “Feds Creating Database to Track ‘Hate Speech’ on Twitter,” Washington Free Beacon, Aug. 25, 2014
• Kevin Eckstrom, “Travelblog: Hate speech, the First Amendment and religious sensitivity,” Religion News Service, Aug. 25, 2014
• Joe Rothstein, “Protect the First Amendment — by Changing it,” US Politics Today, Aug. 25, 2014
• “Free Speech: Police Arrest Child For Writing About Shooting A Dinosaur With A Gun,” Anorak, Aug. 25, 2014
• Conor Morris, “OU receives extra time to reply to free-speech lawsuit,” Athens News, Aug. 24, 2014
• Kevin Matthews, “4 Journalists Who Only Like One Part of the First Amendment,” Care2, Aug. 24, 2014
• “New regs by NY election board on political committees raises free speech concerns,” Fox News, Aug. 23, 2014
• Danielle Keats Citron, “Free Speech Does Not Protect Cyberharassment,” New York Times, Aug. 20, 2014

Last Scheduled FAN Column: #28 — “The Demise of Stare Decisis?”

Last FAN Column: #28.1 — “The First Amendment in the Era of ISIS”

Next Scheduled FAN Column: #30 — Wednesday, September 3, 2014

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge.

As I mentioned, a petition for certiorari had been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

→ Additional information about the case is set out in FAN #25. Stay tuned for future developments.

As the summer winds down, the cerebral season beckons us with a variety of books on free speech, with topics ranging from campaign finance to paparazzi and from free speech history to contemporary privacy issues boiling in the free speech caldron. There are also books on global expression, reporters privilege, and censorship and racial ridicule, among others. So prepare your minds, it is, as they say, the time of the season.

You may recall the name Judith Miller, the Pulitzer Prize winning and former New York Times journalist who was jailed for 85 days for contempt of court for refusing to reveal her sources to a grand jury in connection with a leak naming Valerie Plame as a CIA agent. Though Floyd Abrams represented her, the Court of Appeals ruled against her First Amendment and other claims in In re Grand Jury Subpoena, Judith Miller (D.C. Cir. 2005).

Against that backdrop and more comes a book titled The Story: A Reporter’s Memoir (Simon & Schuster). The release date is April 7, 2015. Here is how her publisher describes the book:

She turns her journalistic skills on herself and her controversial reporting which marshaled evidence that led America to invade Iraq. She writes about the mistakes she and others made on the existence in Iraq of weapons of mass destruction. She addresses the motives of some of her sources, including the notorious Iraqi Chalabi and the CIA. She describes going to jail to protect her sources in the Scooter Libby investigation of the outing of CIA agent Valerie Plame and how the Times subsequently abandoned her after twenty-eight years. 

The Story describes the real life of a foreign and investigative reporter. It is an adventure story, told with bluntness and wryness.

∇ ∇ ∇ 

Early next year the University of North Carolina Press will release Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation, 1890-1930. The book, replete with a provocative cover, is by M. Alison Kibler, an associate professor of American Studies and Women and Gender Studies at Franklin & Marshall College.

In Censoring Racial Ridicule Professor Kibler explores the “relationship between free expression, democracy, and equality in America,” and all of this mindful of contemporary debates over hate speech.

What is different about this forthcoming book is how it approaches its subject matter and how it portrays the responses of those who have been the victims of racial hatred. Unlike many other books that depict the victims of hate speech as helpless and silent victims, Professor Kibler’s work reveals a far more robust and courageous response, sometimes accompanied by calls for censorship.

This is how the history of opposition to hate speech is summarized in some advance publicity on the book:

A drunken Irish maid slips and falls. A greedy Jewish pawnbroker lures his female employee into prostitution. An African American man leers at a white woman. These and other, similar images appeared widely on stages and screens across America during the early twentieth century. In this provocative study, M. Alison Kibler uncovers, for the first time, powerful and concurrent campaigns by Irish, Jewish and African Americans against racial ridicule in popular culture at the turn of the twentieth century. Censoring Racial Ridicule explores how Irish, Jewish, and African American groups of the era resisted harmful representations in popular culture by lobbying behind the scenes, boycotting particular acts, and staging theater riots. Kibler demonstrates that these groups’ tactics evolved and diverged over time, with some continuing to pursue street protest while others sought redress through new censorship laws.

∇ ∇ ∇ 

Other books coming out this year include the following:

• Christopher S. Grenda, Chris Beneke,  & David Nash, eds., Sacrilegious Expression in a Multicultural Age  (University of California Press, Aug. 15)
• Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (Harvard University Press, Aug. 25, 2014) (see CLP Blog post here)
• Danielle Keats Citron, Hate Crimes in Cyberspace (Harvard University Press, Aug. 25)
• Melinda Gann Hall, Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections (Stanford Studies in Law & Politics, Oct. 15)
• Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press, November 17)
• John C. Knechtle, Mastering First Amendment Law (Carolina Academic Press)
• Monroe Price, Free Expression, Globalism, and the New Strategic Communication (Cambridge University Press, Dec. 31)

→ See also Jason Ross Arnold, Secrecy in the Sunshine Era: The Promise and Failures of U.S. Open Government Laws (University Press of Kansas, Aug. 20).

∇ ∇ ∇ 

When Doctor Samuel Johnson finished [his great] English dictionary, he was visited by . . . a delegation of London’s respectable womanhood who came to his parlor . . . and said, “Doctor, we congratulate you on your decision to exclude all indecent words from your dictionary,” [whereupon he replied],  “ladies, I congratulate you on your persistence in looking them up.” – Christopher Hitchens (2006)

Books coming out next year

Some of the books on free speech scheduled to be published next year include the following:

• Burt Neuborne, Madison’s Music: On Reading the First Amendment (The New Press, Feb. 3) (see FAN #13)
• Charles Slack, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech (Atlantic Monthly Press, March 3)
• Ronald Collins & David Hudson, The Fundamental Black, A Free Speech Chronicle and Reader – Selections from the Opinions, Books, Articles, Speeches and Other Writings by and about Hugo L. Black (Cambridge University Press, fall)

Amicus briefs staking up in “true threats” case

The case is Elonis v. United States and the amicus briefs are coming in — eight thus far. The groups and their lead lawyers are:

• American Civil Liberties Union et al (Steven R. Shapiro) (supporting Petitioner)
• The Thomas Jefferson Center for the Protection of Free Expression (Joshua Wheeler) (supporting Petitioner)
• Reporters Committee for Freedom of the Press (Bruce D. Brown)  (supporting Petitioner)
• Marion B. Brechner First Amendment Project, et al (Clay Calvert) (supporting Petitioner)
• People for Ethical Treatment of Animals, Inc., et al. (Brian J. Murray) (supporting Petitioner)
• Center for Individual Rights (Michael E. Rosman) (supporting Petitioner)
• Student Press Law Center (Sean J. Jordan) (supporting Petitioner)
• Rutherford Institute (John W. Whitehead) (supporting Petitioner)

(Hat tip to SCOTUSblog & ABA Preview of Supreme Court Cases)

→ For commentary, see:

• Dahlia Lithwick, “Are Facebook Threats Real?,” Slate, June 16, 2014
• Scott Bomboy, “Rap lyrics part of First Amendment case coming to the Supreme Court,” Constitution Daily, Sept. 2, 2014

∇ ∇ ∇

Many people are confused about what free speech is all about. It is not freedom for the thought you love. It is freedom for the thoughts you hate the most. — Larry Flint on the occasion of the 40th anniversary of Hustler Magazine.

Another Reminder — Senate to vote on amendment to First Amendment

A procedural vote has been scheduled for Monday, September 8, 2014 at 6 p.m. EDT concerning a proposed amendment to the First Amendment. More on this next month.

Headline: “Libertarian Students are Leading the Fight for Free Speech on Campus”

Writing in The Daily Caller, Elliot Engstrom notes: “A diverse collection of students and activists has launched an all-out assault on campus speech restrictions. This coalition includes conservatives, libertarians, and even leftists dedicated to the free and open expression of ideas. And today, this coalition is winning.”

For more, go here.

→ See also Azhar Majeed, “This Academic Year, Colleges Should Eliminate Speech Codes — Or Prepare for Their Day in Court,” Huffington Post, Sept. 2, 2014

First Amendment essays sought

“Oklahoma high school students who enter the 2014 Zach Taylor First Amendment Essay Contest will be eligible to win cash prizes worth up to $300.The contest is sponsored by FOI Oklahoma Inc., a statewide organization that supports organizations and individuals dedicated to government transparency. This year, writers are being asked to write about the importance of one of the five freedoms guaranteed by the First Amendment.

→ Essays, which are due Oct. 10, should be about 500 typewritten words and double-spaced in Microsoft Word or portable document format. Entries must include the student’s name, grade, school, teacher’s and  principal’s names along with the student’s mailing address, phone number and email address.

→ Entries must be emailed to Bill Young at bill.young@libraries.ok.gov.

→ Prizes will be awarded Nov. 5 during the 2014 First Amendment Congress at University of Central Oklahoma. Information: (405) 522–3562 or (405) 370–3750.” (Source here)

The First Amendment in Five Minutes?

That’s right, just listen to Floyd Abrams here on Big Think.

Quick Hits

Scholarly Articles

• Richard Briffault, “The Uncertain Future of the Corporate Contribution Ban,” Valparaiso University Law Review 

News Stories, Op-eds & Editorials

• Rhet Martin, “Could the Supreme Court’s View on Corporate Speech Threaten Your Health?,” ZY, Sept. 3, 2014
• Denise Lavoie, “Online harassers appeal convictions on free-speech grounds,” Associated Press, Sept. 1, 2014
• Charles Haynes, “First Amendment: The ‘Black Mass’ in Oklahoma,” The Desert Sun, Sept. 1, 2014
• Cortney O’Brien, “”Emergency Regulations”: NY’s Latest Attempt to Suppress Free Speech,” TownHall.com., Sept. 1, 2014
• Karen Antonacci, “McAllen noise ordinance prompts First Amendment lawsuit,” The Monitor, Sept. 1, 2014
• Sarah Zagorski, “Planned Parenthood Pushes Radical Law Prohibiting Pro-Life Free Speech in Vermont,” LifeNews.com, Sept. 1, 2014
• David Bossie, “Free Speech Is Winning, Thanks to Citizens United,” Breitbart, Aug. 30, 2014
• Robert McDowell, “Net Neutrality vs. Free Speech,” Wall Street Journal, Aug. 28, 2014
• Jennifer Granick, “FISC OKs Section 215 Investigations of Americans, Despite First Amendment,” Just Security, Aug. 28, 2014
• Ed Silverman, “Pharma Claims Free Speech Rights are Being Trampled in Off-Label Case,” Wall Street Journal, Aug. 28, 2014
• Julie McCarthy, “Security vs. Free Speech: India Blocks Film On Assassination,” NPR, Aug. 28, 2014
• Eugene Volokh, “Thuggery wins, free speech rights lose,” The Volokh Conspiracy, Aug. 27, 2014

Next Scheduled FAN Column: #31, Wednesday, September 10th.

Last Scheduled FAN Column: #29, “Exceptional Freedom: How many exceptions are there to the First Amendment?“

Last FAN Column: #31.1, “Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case“

Judge Richard Posner

He is a rara avis – he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

⇒ Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

→ The history of campaign finance regulation demonstrates the need to erect sturdy safeguards for free speech. — ACLU amicus brief, Citizens United v. FEC, July 29, 2009

→ Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them. — ACLU 2012 Statement

Below is a September 4, 2014 letter signed by six former leaders of the ACLU and presented to the chairman and members of the Senate Judiciary Committee. While the footnotes have been omitted, the full text with notes can be found here. Finally, note that a September 8, 2014 vote has been scheduled in the Senate concerning a proposal to amend the First Amendment.  

→ Following the statement below is a response from Ms. Laura W. Murphy, Director of the Washington Legislative Office of the ACLU.

ENTER THE DISSENTERS

Dear Chairman Leahy, Ranking Member Grassley, Subcommittee Chairman Durbin, and Subcommittee Ranking Member Cruz:

This summer, some have taken to citing a June 2014 letter from the ACLU to bolster opposition to a constitutional amendment that would change the way Congress can regulate election spending.[fn] While, as present and former leaders of the ACLU, we take no position in this letter on whether a constitutional amendment is the most appropriate way to pursue campaign finance reform, we believe that the current leadership of the National ACLU has endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straitjacket that threatens the integrity of American democracy. [Bold type above & italicized bracketed text below  = added]

[Here is the ACLU position as stated on its website:  “Unfortunately, legitimate concern over the influence of ‘big money’ in politics has led some to propose a constitutional amendment to reverse the decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”

→ And there is this statement by Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”]

In 1998, some of us signed the enclosed letter circulated by every then-living retired leader of the ACLU, protesting the ACLU’s erroneous insistence that the First Amendment makes it impossible to regulate massive campaign spending by the richest 1/10 of 1% of the American electorate. [fn] Things have only gotten worse since 1998. The passage of 16 years means that fewer 20th century ACLU leaders are left to sign this letter. More importantly, over the past 16 years, using the ACLU’s erroneous reading of the First Amendment as a fig leaf, five justices have added huge multi-national corporations to the list of unlimited campaign spenders, [fn] and authorized wealthy individuals to contribute virtually unlimited sums to party leaders in a never-ending search for wealth-driven political influence. [fn] Under the ACLU’s erroneous reading of the First Amendment, it is no exaggeration to label today’s version of American democracy as “one dollar-one vote.” We reiterate the substance of the 1998 letter, and add the following additional comments in light of the unfortunate events of the last 16 years.

John Shattuck, one of the signers of letter

Our campaign finance system, already in dreadful shape in 1998, has only gotten worse. Today, American democracy is almost irretrievably broken because it is dominated by self-interested, wealthy interests. We believe that reform of our campaign finance system is the only way to fulfill Lincoln’s hope that government of the people, by the people, and for the people shall not perish from the earth. The 2012 federal election cycle was the most expensive in our history, with a combined price tag of $6.3 billion. Most of the money came from the top 1% of the economic tree. Indeed, even within the 1%, the top 10% of the 1% exercised overwhelming independent groups, including super PACs, collectively spent $1 billion.[fn] It is the supremely wealthy that provide the bulk of that money. And because of loopholes in the reporting statutes, we don’t even know who many of them are.

Super PACs, in particular, have become a mechanism for the wealthy to exert even greater influence over our elections and our elected officials. Only 1,578 donors, each of whom gave at least $50,000, were responsible for more than $760 million — or 89.3% — of all donations to super PACs in 2012.[fn] Thus, a microscopic percentage of the population is funding a significant percentage of the political spending in this country.

Equally, many likely 2016 presidential candidates have made pilgrimages to wealthy independent spenders hoping to bolster their electoral chances.[fn]  Such opportunities for candidates to, as many outlets put it, “kiss the ring” of a major political donor rightfully cause the public to question whether candidates are tailoring their views to the highest bidder.

We believe that the Supreme Court’s campaign finance decisions from Buckley [fn] to Citizens United to McCutcheon are based on three fallacies. → First, the Court wrongly equates spending unlimited sums of money with pure speech. We agree that campaign spending is a mix of speech and conduct. At reasonable spending levels, the speech element predominates, rendering unreasonably low campaign spending levels (like the absurdly low spending levels in Buckley) unconstitutional. But there comes a point where the conduct element of unlimited spending predominates, permitting content-neutral regulation of massive electoral spending to preserve the ideal of political equality at the heart of American democracy, and to protect the public from the corruption risks associated with vast political spending.

→ Second, the Court improperly distinguishes between political contributions and expenditures. Under the Court’s reasoning, contributions given directly to candidates may be limited, but independent spending may not be. Given the courting by candidates of big independent spenders since the Citizens United decision, it’s clear this distinction makes little sense. Massive contributions and massive independent expenditures each buy undue influence.

→ Third, the Court has failed to recognize that political equality is a compelling interest that justifies reasonable limits on massive political spending. Rather than interpreting the First Amendment as assuring everyone a reasonable opportunity to be heard, the Court (and the National ACLU) has turned the First Amendment on its head by guaranteeing the wealthy an expensive set of stereo speakers and leaving the average citizen with a bad case of laryngitis. Most Americans would find it preposterous to allot more time in a debate to the speaker with the most money. Yet, that is precisely how our campaign finance system functions today.

Adoption of the National ACLU’s misreading of the First Amendment by the Supreme Court’s five justice majority has made things much worse in the last few years. Citizens United has enabled big corporate money to run amok in our political system. McCutcheon struck down the generous limit of $123,200 that an individual was permitted to contribute during a given election cycle. [fn]

After Citizens United and McCutcheon, the sky’s the limit for supremely wealthy folks on the hunt for political influence. New joint fundraising committees have already emerged to channel money to candidates even more efficiently. [fn]

Most disturbing of all is that the current Supreme Court applauds the undue influence that big money can buy. As the Court majority said in McCutcheon, “Ingratiation and access . . . are not corruption. They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.” [fn] That is, of course true. But it is supposed to apply to all of us, not merely the supremely wealthy. Taken to its logical extreme, as the Court seems poised to do, the voices of ordinary Americans will be drowned out entirely by their rich “neighbors” who live nearby in the gated community.

We share a profound respect for the ACLU’s magnificent efforts to defend constitutional rights in this country since its founding almost a century ago. We are proud to have devoted significant portions of our careers to the organization’s work, and look forward to continuing to support the ACLU in the future. On this important issue, however, we believe the ACLU is mistaken. The time has come for a change in the Supreme Court’s campaign finance jurisprudence. We believe that overturning many of the Court’s narrow 5-4 campaign finance precedents and implementing generous, content neutral political spending limits is the best way to fulfill the promise of James Madison’s First Amendment as democracy’s best friend.

Sincerely,

Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law at NYU School of Law; ACLU President, 1976-91, and General Counsel, 1969-76

Aryeh Neier, President Emeritus of the Open Society Foundations; ACLU Executive Director, 1970-78; New York Civil Liberties Union Executive Director, 1965-70

Burt Neuborne, Inez Milholland Professor of Civil Liberties at NYU School of Law; ACLU National Legal Director, 1981-86

John Powell, Director of the Haas Institute for a Fair and Inclusive Society and The Robert D. Haas Chancellor’s Chair in Equity and Inclusion at University of California, Berkeley; ACLU National Legal Director, 1987-93

John Shattuck, President and Rector of Central European University; Executive Director of the ACLU Washington Office, 1976-84

Mel Wulf, ACLU National Legal Director, 1962-77

→ Hat tip to Rick Hasen and the Brennan Center for Justice

⇓

There’s been a major breakthrough in the battle to reform the campaign money system. As the House of Representatives joined a bitter debate this week over a measure to fight some of the more egregious campaign abuses, a group of luminaries from the American Civil Liberties Union has broken with the organization’s opposition to the principles underlying the bill.In a statement that will be formally released in the next few days, the nine leaders — among them, former ACLU president Norman Dorsen, former executive director Aryeh Neier, former legal director Burt Neuborne and former legislative director Morton Halperin — dispute the ACLU’s view that placing “reasonable limits on campaign spending” violates the First Amendment. – E.J. Dionne, Jr., Washington Post, June 19, 1998

⇓

→ NOTE: In more recent years, former ACLU leaders have filed amicus briefs to the Supreme Court in opposition to the ACLU position in cases such as McConnell v. FEC (2003) (see Appendix to When Money Speaks). In McConnell, for example, Morton Halperin signed onto one such oppositional brief. Even so, he did not sign onto the above letter by former ACLU leaders.

ACLU LEGISLATIVE DIRECTOR RESPONDS 

Ron,

In response to your query, I wanted to share my personal thoughts on the letter recently circulated by the Brennan center from former ACLU leaders hours before the Senate vote on the Udall Amendment.  In my view, the letter is meant to confuse congressional staff about who speaks for the ACLU and is designed to provide cover to Democratic senators for voting for a breathtakingly broad constitutional amendment to limit the First Amendment.

Laura W. Murphy

While the signers of the letter allegedly take no position on the proposed amendment, anyone who reads their hyperbolic (and in some cases factually unsupported) assertions has to know that the letter gives a wink and a nod to Senate Democrats to support the amendment. Otherwise, what is the point of the timing and substance of the letter? Are there other campaign finance bills coming to the Senate floor in the waning days of the 113^th Congress? No.

Instead of a constitutional amendment, the ACLU supports legislation to expand, not limit, the resources available for political advocacy. Thus, the ACLU supports a comprehensive and meaningful system of public financing that would help create a level playing field for every qualified candidate. We support carefully drawn disclosure rules. We support reasonable limits on campaign contributions and we support stricter enforcement of existing bans on coordination between candidates and super PACs.

But some Democrats, who are sometimes soft on the First Amendment, don’t believe that kind of legislation will ever pass. Well, it won’t unless we agree to get Congress to take it seriously. But guess what? The Udall constitutional amendment won’t pass either.  The votes are not there. It is merely a vehicle for Democrats to make a point, not to engage in lawmaking. The leaders of the House of Representatives will not even schedule a floor vote, and will thus dismiss it out of hand.

Instead of facilitating common ground with Republicans and Democrats to find achievable solutions to our campaign finance problems, the signers of the Brennan Center letter are knowingly allowing themselves to be used for partisan purposes. They know that their letter will make little difference, if any, in the outcome of the vote.  I have so much respect for each and every one of them, but not for this eleventh hour “sham issue advocacy.”

To give just a few hypotheticals of what would be possible in a world where the Udall proposal is adopted as the 28th Amendment to the Constitution:

1. Congress would be allowed to restrict the publication of Secretary Hillary Clinton’s memoir Hard Choices were she to run for office;
2. Congress could criminalize a blog on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Senator Marco Rubio (R-FL) of being a “climate change denier”;
3. Congress could regulate Public Citizen’s website, which urges voters to contact their members of Congress in support of a constitutional amendment addressing Citizens United and the recent McCutcheon case, under the theory that it is, in effect, a sham issue communication in favor of the Democratic Party;
4. A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform;
5. A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors;
6. A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions; and
7. Congress could pass a law regulating the ACLU’s letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats).

Such examples are not only plausible, they are endless. But the signers of the Brennan Center letter don’t address these legitimate concerns.

Currently, we can combat government regulated viewpoint discrimination, selective enforcement and unreasonable regulations that unnecessarily stifle free speech in the courts. Our ability to challenge those governmental actions would not apply to speech covered by this proposed amendment. Tinkering with the First Amendment in this way opens the door to vague and overbroad laws, which both fail to address the problem that Congress  and those concerned about the ill effects of Citizens United wish to solve and invariably pull in vast amounts of protected speech.

Democratic and Republican senators should vote “NO” on the Udall Amendment.

Sincerely,

Laura W. Murphy

⇓

→  For more on the history of this ACLU controversy, see:

• Ronald Collins & David Skover, When Money Speaks (2014)
• Ronald Collins & David Skover, “Before McCutcheon – The ACLU position in the early years,” SCOTUSblog, March 12, 2014
• Steven R. Shapiro, “The ACLU & the McCutcheon case,” SCOTUSblog, March 14, 2014 (includes Ronald Collins & David Skover – Rejoinder to Steven Shapiro)
• Joel Gora, “Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?” (2013)
• Susan Herman, “ACLU Backs the First Amendment,” letter to Wall Street Journal, May 6, 2010
• Floyd Abrams, Ira Glasser & Joel Gora, “The ACLU Approves Limits on Speech,” Wall Street Journal, April 30, 2010
• ACLU Board Addresses Campaign Finance Policy, Aptil 19, 2010
• “ACLU Denounces Campaign Finance Bill As Unconstitutional Attack on Political Freedom in America,” March 30, 2001
• ACLU on Campaign Finance Reform (2001-2012)
• Joel Gora, “Campaign Finance Reform: Still Searching Today for a Better Way” (1998) (“I first encountered campaign finance reform as a young ACLU lawyer twenty-five years ago, in 1972.”)

→ This from Susan Ferrechio  writing in the Washington Examiner:

“The Senate voted Monday to begin debate on an amendment to the U.S. Constitution that would grant Congress and the states the power to regulate campaign finance.The measure cleared a procedural hurdle by a vote of 79-18. It was authored by Democrats, who had anticipated it would be blocked by GOP opposition. But Republicans voted to move ahead with debate, turning what was supposed to be a Democratic messaging bill against the Democrats.”

→ This from Ramsey Cox writing for The Hill:

“The Senate on Monday advanced a constitutional amendment meant to reverse two recent Supreme Court decisions on campaign spending.Republicans are likely to vote against the amendment when it comes up for a final vote, but by allowing it to proceed, ensured that it will tie up the Senate for most of the week.More than 20 Republicans joined Democrats in the 79-18 vote advancing the amendment, well over the 60 votes that were needed. The amendment is almost certain to fail, as it would need to win two-thirds support to pass the Senate, and then would still need to move through the House and be ratified by two-thirds of the states.”

“‘We should have debate on this important amendment,’ Sen. Chuck Grassley (R-Iowa) said before voting for cloture. ‘The majority should be made to answer why they want to silence critics.’ Senate Majority Leader Harry Reid (D-Nev.) said he would gladly debate the issue for as long as Republicans require because the amendment is necessary to keep ‘dark money’ out of politics.”

→ This from Burgess Everett writing for Politico:

“Several Senate Republicans joined Democrats on Monday to advance a constitutional amendment that would give Congress and the states greater power to regulate campaign finance. But the bipartisanship ends there. Many of the Republicans only voted for the bill to foul up Democrats’ pre-election messaging schedule, freezing precious Senate floor time for a measure that ultimately has no chance of securing the two-thirds support necessary in both the House and Senate to amend the Constitution. The legislation needed 60 votes to advance and Democrats took a cynical view of the 79-18 tally.”

“Ahead of the vote, [Senator Bernie] Sanders and other pro-reform Democrats like [Senators] Al Franken of Minnesota, Amy Klobuchar of Minnesota and Tom Udall of New Mexico held a rally on the Capitol grounds with amendment supporters and supporting groups like People for the American Way, Common Cause and Public Citizen. The crowd was a solid mix of reporters and demonstrators with signs reading “Democracy is not for sale.”

For commentary, see:

→ Tom Udall & Bernie Sanders, “The Threat to American Democracy,” Politico, Sept. 7, 2014

→ Geoffrey Stone, “The Rift in the ACLU Over Free Speech,” Huffington Post, Sept, 8, 2014 (see also here re ACLU controversy)

“This is a surreal time for freedom of speech.” 

He is a First Amendment activist / he likes his freedom robust / he refuses to leave censorial speech codes alone / and he is making a real difference in safeguarding free speech in America (see, e.g., here). True, there can be an irksome quality about him, or at least so think some college administrators who cabin liberty in “free speech zones” (oh, the Orwellian irony of the phrase!). There is an air of Tom Paine about him, if only in his willingness to speak boldly and perceptively about our contemporary crisis in free speech, a crisis fostered as much by close-minded liberals as by ideologically driven conservatives. And if you miss those wonderfully irreverent Christopher Hitchins broadsides, then take heed: here is someone with a dollop of the same brazen DNA. Even so, he is civil / he speaks softly / he listens to other voices / he welcomes a hearty give-and-take / and he puts his views to the test in the marketplace of ideas (see, e.g., his last book).

The man of whom I speak: Greg Lukianoff.

His broadside: Freedom from Speech (61 pp.) (paperback: $5.39 / Kindle: $4.79)

His publisher: Encounter Books.

This timely broadside is as American as blue jeans . . . and yet its message struggles to survive in a nation where governmental intolerance and groupthink orthodoxy too often rule over the minds and voices and campaigns of those who would have their messages heard. If you want a turgid academic read, avoid this work. So, too, if you want everything from the obvious to the obfuscated documented by a long string of fancy footnotes dotted with case names and the like. And if you yearn for a work that merrily balances away individual freedom of speech in the name of some professorial parlor norm, Lukianoff’s pamphlet will not be your cup of tea. Just  common sense and plain speech are served up in this pamphlet in defense of free speech.

Why the title?

Before answering that question, it is important to note that Lukianoff”s concerns are not confined to the First Amendment. Hardly. What troubles this Stanford Law School educated activist are threats to the culture of free speech in America and abroad. “People all over the globe,” he argues, “are coming to expect emotional and intellectual comfort as though it were a right.” That focus brings us back to the title. Censorship due to hypersensitivity, Lukianoff argues, “is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.”

While some might reasonably take issue with the author’s criticisms of private actors punishing others for offensive speech (e.g. offensive types such as Donald Sterling, the Duck Dynasty guys, Don Imus, and Howard Stern), I nonetheless think Lukianoff makes a telling point when he highlights the growing trend, particularly on college campuses, towards various forms of what he labels a “sensitivity-based censorship.” On that score he adds: “The idea that we can truly tackle hard issues while remaining universally inoffensive — an impossible pipe dream even if it were desirable — seems to be growing increasingly popular.”

Education in censorship? 

All of this and more brings Lukianoff (the president of the Foundation for Individual Rights in Education) to his critique of what he sees as the censorial mindset of many in the modern academy:

This is a surreal time for freedom of speech. While the legal protections of the First Amendment remain strong, the culture is obsessed with punishing individuals for allegedly offensive speech utterances. And Academia — already an institution in which free speech is in decline — has grown still more intolerant, with high profile “disinvitation” efforts against well-known speakers and demands for professors to provide “trigger warnings” in class. 

As campus speech codes demonstrate, this is no laughing matter. “It is blazingly clear,” complains Lukianoff, “that politically correct censorship and comedy are natural enemies.” If you doubt it, try playing some of Lenny Bruce’s more edgy comedy and see what happens.

What to do? Beyond challenging blatantly unconstitutional college speech codes and campus “free speech zones” (this with the help of noted First Amendment lawyer Robert Corn-Revere and his colleagues at Davis Wright Tremaine), Greg Lukianoff is already preparing his next book: “I hope to write extensively in the coming years about the potential solutions to problems of comfort, the expectation of confirmation [of ones views], and the desire for free speech.” Meanwhile, he remains ready to fight: “Unless higher education stops encouraging these inclinations and starts combatting them, it will be a hard battle indeed. Then again, the fight for freedom of speech has never been easy.”

The time for public debate

The time for public debate on censorship versus comfort, on individual liberty versus collective norms, and on freedom of speech versus freedom from speech is long overdue. Whatever one makes of Mr. Lukianoff’s broadside, it is just the sort of provocative and thoughtful work needed to launch a debate among ten-thousand voices . . . and more.

∇ ∇ ∇

 → Meanwhile, here is an idea for some of those who have untold amounts of money to spend on campaigns: Cut a check to Mr. Lukianoff’s publisher with the understanding that hundreds of copies of Freedom from Speech be sent to college administrators and university lawyers, among others. In other words, use your money to support free speech (controversial as such a practice may be).

Before I close, let me add a word to those who might find my commentary a bit much. Okay,  it’s a free country, you’re entitled to your views. So, if you think that my qualified praise unwarranted, then read Freedom from Speech. If after doing so you still take exception to my adjectives, tell me and tell me why. My response? At that point I will let Mr. Lukianoff (whom I know) defend himself.

One more thing: Kudos to Encounter Books for publishing this and other broadsides. It’s good to know that some publishers still trade in ideas with an edge, a cutting edge.

 → See also Greg Lukianoff, “Free Speech at Berkeley—So Long as It’s ‘Civil’,” Wall Street Journal, Sept. 8, 2014

Heritage Foundation event on Campaign Finance  Laws

• Title: “Putting Your Money Where Your Mouth Is: The New Assaults on Campaign Speech”
• Date & Time:  Thursday, September 18, 2014 @ 12:00-1:00 p.m.
• Program Chair: James L. Swanson
• Moderator:  Adam Liptak (Supreme Court Correspondent, New York Times )
• Discussants:

1. Floyd Abrams (Partner, Cahill Gordon & Reindel, co-argued Citizens United v. Federal Election Commission)
2. Erin Murphy (Partner, Bancroft PLLC, and co-argued McCutcheon v. Federal Election Commission )
3. Ron Collins (Harold S. Shefelman Scholar, University of Washington School of Law and co-author (with David Skover), When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014))

•  Description

Money had long been an issue in American politics, going back at least to the time of President Andrew Jackson when Congress considered a bill relating to campaign funding. Congress passed the first campaign finance law in 1867 and then another in 1883. Then, the Tillman Act in 1907 prohibited corporations and national banks from making monetary contributions to federal candidates, and it was followed by the Federal Corrupt Practices Act in 1910. More recently, the trend continued with the Taft Hartley Act, the Federal Election Campaign Act, and the Bipartisan Campaign Reform Act in 2002. On the judicial front, litigation in this area has attracted Supreme Court attention from 1921 until today. Starting in the mid-1970s, conservatives often defended and enforced such laws, while the ACLU led the charge to contest them and often prevailed as it did in the landmark case of Buckley v. Valeo (1976). By 2014, when the Court decided McCutcheon v. FEC, the liberal mindset changed as more and more liberal groups not only railed against rulings such as McCutcheon and Citizens United, but also launched a campaign to amend the First Amendment. How much speech are we as a people willing to tolerate during elections? Should some speech be prohibited during elections? Who can speak and how much can they speak when it comes to elections? Join us as a distinguished panel of First Amendment law experts discuss these questions and more.

 → To attend (no charge), go here to RSVP (& to watch online, go here)

Eighth Circuit strikes down ban on false statements used in ballot measure campaigns

The case: 281 Care Committee v. Arneson (8th Cir., Sept. 2, 2014).  Unanimous, per Judge Clarence Beam.

Here is how Professor Eugene Volokh described the case and its holding: “Minnesota, like some other states, has a statute criminalizing knowingly false statements in ballot measure campaigns. Complaints under the statute can be brought by anyone, and are lodged in the first instance with the Minnesota Office of Administrative Hearings (OAH); the OAH can impose civil penalties, and after proceedings before the OAH are done, a county attorney can then initiate a prosecution.” The court, he added, “struck down the statute. Though the government argued that the ban was aimed at preventing fraud on the voters,” Judge Beam “concluded that the law wasn’t narrowly tailored to that interest. . . . The court also concluded that the law was unconstitutionally underinclusive in certain ways, and that counterspeech was the better solution for the problem (an imperfect solution, but less so than the prohibition).”

 → For more, see here for Volokh’s discussion of the case.

Quick Hits

 → Peter Moskowitz, “When fracking and free speech collide,” Aljazeera, Sept, 10, 2014 (re a defamation case against a man who claimed fracking polluted his water highlights free-speech issues)

News Stories, Editorials & Op-Eds

• David Schultz, “Political lies and the First Amendment: What role should deception have in politics?,” MinnPost, Sept. 10, 2014
• Eleanor Clift, “The New War on Big Money in Politics,” The Daily Beast, Sept. 10, 2014
• Rebecca Baker, “Internet Free Speech Case to Highlight OAD Fundraiser,” New York Law Journal, Sept. 10, 2014
• Eugene Volokh, “Free speech and civility at universities,” The Volokh Conspiracy, Sept. 9, 2014
• John Hinderaker, “Why Is Al Franken Afraid of Free Speech?,” Powerline, Sept. 9, 2014
• Emily Ekins, “Americans Say: Curb Election Spending, But Absolutely No Curbs on Speech,” Reason.com, Sept. 9, 2014
• Michael Keegan, “The First Amendment, According to Mitch McConnell,” Huffington Post, Sept. 9, 2014
• Editorial, “We’ll Take Free Speech, Thank You,” National Review Online, Sept. 9, 2014
• Peter Roff, “A New Assault on the First Amendment,” U.S. News & World Report, Sept. 9, 2014
• Luke Wachob, “Udall’s Futile Fight against Free Speech,” National Review Online, Sept. 8, 2014
• Clay Calvert, “Metal Music, First Amendment Under Attack: Man Jailed for Posting Exodus Lyrics,” Huffington Post, Sept. 8, 2014

Last Scheduled FAN Column: #30 — “New & Forthcoming Books on Free Speech & Related Topics”

Last FAN Column: #30.3 — “Senate votes to begin debate on proposed amendment to First Amendment”

Next Scheduled FAN Column: #32 — Wednesday, September 17th (Constitution Day).

We must preserve our Bill of Rights including our rights to free speech. We must not allow officials to diminish and ration that right. We must not let this proposal become the supreme law of the land. – Senator Chuck Grassley, Sept. 10, 2014

Text of First Amendment on stone tablet facing Pennsylvania Avenue — the Newseum

It’s over now, the campaign to amend the First Amendment. The Democratic-led effort died in the Senate yesterday by a vote of 54-42. Thankfully, the constitutional theatrics have ended and the 1791 text remains safe, at least from any Article V threat by lawmakers.

Not surprisingly, reports Burgess Everett writing in Politico, “Senate Republicans unanimously rejected a constitutional amendment sought by Democrats that would allow Congress to regulate campaign finance reform. . . . The failure of the proposal followed a surprising result on Monday, when the measure advanced past an initial filibuster despite broad GOP opposition to the measure.”

“Grassley and two dozen other Senate Republicans voted to advance the bill,” added Everett, “to blunt Democrats’ plans to hold a second round of campaign-flavored Democratic votes on proposals aimed at raising the minimum wage, overturning the Hobby Lobby Supreme Court decision, chipping away at gender pay disparities and reforming the student loan system.”

After the vote, Senate Majority Harry Reid (D-Nev.) said: “Today, Senate Republicans clearly showed that they would rather sideline hardworking families in order to protect the Koch brothers and other radical interests that are working to fix our elections and buy our democracy.” Senator Chuck Grassley (R-Iowa) had a quite different view: “The proposed amendment would restrict the most important speech the First Amendment protects, core political speech. It’s hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed.” (See also text of Senator Grassley’s floor statement.)

Looking back: Justice Stevens takes the stage 

The constitutional campaign movement got a big boost last April when Justice John Paul Stevens proposed an amendment to the First Amendment. Remember, he did so in his book Six Amendments: How and Why We Should Change the Constitution. His proposed amendment provided:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

On April 30, 2014, Justice Stevens testified before a Senate Rules Committee at which he read a statement in defense of his proposed amendment.

Looking back:  The Leahy hearing 

And then on June 3, 2014, the Senate Judiciary Committee, presided over by Senator Patrick Leahy, held a hearing on a constitutional amendment introduced by Senator Tom Udall (D-NM) (see YouTube clip here) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors):

SECTION 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.

SECTION 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the raising and spending of money and in-kind equivalents with respect to State elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.

SECTION 3. Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.

SECTION 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation.

At that hearing Floyd Abrams voiced strong opposition to the idea of amending the First Amendment:

The description of the constitutional amendment it proposes states, in its text, that it ‘relate[s] to contributions and expenditures intended to affect elections.’ That’s one way to say it, but I think it would have been more revealing to have said that it actually ‘relate[s] to speech intended to affect elections.’ And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that. . . .

There were also other proposed amendments, including one proposed by Harvard Law Professor Laurence Tribe, who later withdrew his support for such an effort.

Looking back: Committee approves proposed amendment 

On July 19, 2014, the Senate Judiciary Committee approved a proposed amendment to the First Amendment. The proposed amendment provided:

SECTION 1: To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

The 10-8 vote was along party lines.

 On September 8, 2014, the Senate voted to begin debate on the proposed constitutional amendment. “The measure cleared a procedural hurdle by a vote of 79-18. It was authored by Democrats, who had anticipated it would be blocked by GOP opposition. But Republicans voted to move ahead with debate, turning what was supposed to be a Democratic messaging bill against the Democrats.” [Source here]

Looking back: The ACLU flap 

Finally, there was the ACLU controversy, the latest incarnation of which occurred when six former ACLU leaders contested group’s First Amendment position on campaign finance in an eleventh hour letter to the Judiciary Committee, which was strongly opposed by Ms. Laura Murphy, the director of the Washington Legislative Office of the ACLU.

He brags about it, he is proud of it, he put it on his Facebook page, and now he’s going to be held accountable for it. The  only reason that was done was to upset people. And if he wanted to engage in that kind of behavior, there’s consequences. — District Attorney William Higgins

A 1972 Pennsylvania law makes it a crime (a misdemeanor) to “intentionally desecrate any public monument or structure, or place of worship or burial.” That same law criminalizes the behavior of anyone who “intentionally desecrates any other object of veneration by the public or a substantial segment thereof in any public place.”

William Higgins

Here is the relevant definition: “Desecrate.” “Defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.” (See here for a list of similar desecration laws.)

Bedford County District Attorney William Higgins (FB re-election page here) has invoked that law to go after a 14-year-old boy who allegedly placed photos of himself “placing his crotch near the mouth of a statue of Jesus in prayer on Facebook. The allegedly victimized Jesus statue sits in the front yard of Love In the Name of Christ, a Christian organization in teen’s hometown of Everett, Pa.”

→ Photos of “desecration” here and video of CBS news affiliate story here, replete with phone comments by Mr. Higgins.

As reported in the Altoona Mirror, and as Mr. Higgins is said to have written on his Facebook page: “”I guess I should take solace in the fact that the liberals are mad at me – again. As for this case, this troubled young man offended the sensibilities and morals of OUR community. … His actions constitute a violation of the law, and he will be prosecuted accordingly. If that tends to upset the ‘anti-Christian, ban-school-prayer, war-on-Christmas, oppose-display-of-Ten-Commandments’ crowd, I make no apologies.'”

Jesus statue at center of controversy

→ “Apparently, Mr. Higgins is unaware that the statue isn’t actually Christ, or even a revered piece of art depicting Jesus,” says columnist Drew Johnson writing in the Washington Times. “It’s just a painted piece of concrete mass produced from a mold and sold at flea markets, garden shops and home improvement stores across America. In fact, a slightly smaller version of the statue is available on Sears’ website for $225.” While that may be, the statue does nonetheless resemble what is often thought to be a Christ-like figure.

→ “There are some serious First Amendment issues with this statute” if merely gesturing next to an image is enough to be charged,” said Sara Rose, a staff attorney with the ACLU of Pennsylvania.

→ Professor Eugene Volokh, who first blogged on this story, argues: (1) by its terms, it is arguable whether the statute has been violated; (2) the law might be impermissibly vague; and (3) the law, on its face or as applied, may run afoul of the free speech clause of the First Amendment.

→ “Bedford County President Judge Thomas S. Ling said the next set of juvenile court hearings is scheduled for Oct. 3rd.”

Tenth Circuit rules in “true threats” case 

Writing for a three-judge panel in United States v. Heineman (10th Cir., Sept. 15, 2014), Judge Harris Hartz (joined by Judge Robert Bacharach with Judge Bobby Ray Baldock concurring in the judgment) reversed the Defendant’s conviction in a “true threats” case,this  even while the same general issue in the case is soon to be decided by the Supreme Court in Elonis v. United States.

Facts: “In 2010 and 2011 Defendant sent three e-mails espousing white supremacist ideology to a professor at the University of Utah. The first two e-mails did not contain threats, but the third made the professor fear for his safety and the safety of his family. Entitled “Poem,” it began by addressing the professor by his first name, and contained the following language:

Come the time of the new revolution

we will convene to detain youAnd slay you,

by a bowie knife shoved up into the skull from your pig chin

you choke, with blood flooding in your filthily treasonous throat!

We put the noose ring around your neckand drag you as you choke and gasp

The noose laid on the tree branch
and the fate hath conferred justice for Treason


You are a filthy traitor along the horde of anti-American and anti-Whitey comrades


whose justice shall come to be delivered
To fuck the traitors, for justice!
 fuck Mexico! fuck South America!


Fuck your soul to Hell!


Into the furnace pool of MexiShit as the filthily traitorous asshole and puta!

“Law-enforcement officers traced the e-mail to Defendant through his e-mail address, which had the user name “siegheil_neocon.” Id. at 91. When officers contacted him in writing, he responded immediately, “Is this about the email?” Id. He was charged in the United States District Court for the District of Utah with one count of sending an interstate threat, in violation of 18 U.S.C. § 875(c).”

Against that factual backdrop, Judge Hartz declared:

[T]o say that the effect on the listener supports a “threat” exception to the freedom of speech does not mean that no other considerations come into play. For example, it may be worth protecting speech that creates fear when the speaker intends only to convey a political message. As we understand Black, the Supreme Court has said as much. When the speaker does not intend to instill fear, concern for the effect on the listener must yield. In short, despite arguments to the contrary, we adhere to the view that Black required the district court in this case to find that Defendant intended to instill fear before it could convict him of violating 18 U.S.C. § 875(c). [footnote omitted] [re Defendant Heineman, see news story here]

While Judge Baldock concurred in the judgment, he declined to reach the First Amendment issue and instead grounded his opinion on statutory grounds: “The question presented in this case is whether § 875(c) requires the Government to prove a defendant’s subjective intent to threaten. The court concludes the First Amendment requires such proof. But to my mind we should resolve this case without resorting to the First Amendment by simply construing the statute’s text. Indeed, we are duty bound not to reach constitutional questions unnecessarily even if the parties ask us to do so.”

→ The case was successfully argued by Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah.

→ Questions: One wonders how the ruling in this case might affect the judgment and the analysis in Elonis. For example, will the facts prompt some of the Justices to be more guarded in their First Amendment analysis? Will the Heineman ruling further encourage some of the Justices to dispense with Elonis on statutory grounds? Or, will the Heineman ruling dissuade them from ruling in Mr. Elonis’ favor on either statutory or First Amendment grounds? Or are the facts in Elnois readily distinguishable such as to sustain the Defendant’s claims, either on statutory or constitutional grounds? Finally, if cert. is sought in Heineman, perhaps the Justices will remand it for consideration in light of whatever they do in Elonis. Meanwhile, one thing seems likely: the Heineman facts may well find their way into the oral arguments in Elonis.

→ Note: The Heineman majority declined to follow the ruling of the Sixth Circuit in another “true threats” case — United States v. Jeffries, 692 F.3d 473, 477–81 (6th Cir. 2012), cert. denied, 134 S. Ct. 59 (2013). That case, it should be noted, was also discussed at some length in the government’s reply brief in Elonis as well as in the ACLU’s amicus brief in that case.

(Hat tip to Joan Bertin)

Free expression cases on Court’s Conference docket 

The following free expression First Amendment cases are up for consideration at the Court’s Monday, September 29th “Long Conference”:

1. Williams-Yulee v. The Florida Bar (docket #: 13-1499)

   Issue: Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

2. City of Indianapolis, Indiana v. Annex Books, Inc. (docket #: 13-1441)

   Issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically significant empirical evidence.

3. Ashley Furniture Industries, Inc. v. United States (docket #: 13-1367)

   Issue: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the government must prove that non-discriminatory measures would fail to satisfy the government’s interests.

4. Mehanna v. United States (docket #: 13-1125)

   Issue: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

(Hat tip to Maureen Johnston @ SCOTUSblog)

Quote of the week

If Citizens United were reversed, and the restrictions of McCain-Feingold restored, Fox News (a corporation exempt from the restrictions in the law), could without limit praise and support an anti-birth control candidate like Rick Perry, but Planned Parenthood couldn’t buy time to respond. — Ira Glasser

First Amendment museum in the works 

According to Keith Edwards, writing in the Kennebec Journal, “Genie Gannett, granddaughter of Maine publishing magnate Guy Gannett, got chills as she saw the text of the First Amendment etched into a massive stone tablet at the entrance to the [Newseum] that champions the five freedoms of the First Amendment. She and other Gannett family members want to bring to Augusta those same chills and reverence for [that] constitutional amendment.”

Built in 1911, the Gannett House in Maine is set to be renovated.

“Family members and other members of the board of directors of The Gannett House Project want to turn the Gannett House into an interactive museum dedicated to understanding and appreciating the First Amendment. . . . Gannett said exhibits would include looks at the past, present and future of journalism and free speech, including the digital age of today. She said the group also envisions the building hosting speakers, educational events and visits from schoolchildren from across the state. Exhibits and presentations would likely include discussions of banned books. She said educational exhibits and presentations could also include Maine connections such as those about Elijah Parish Lovejoy, a Colby College graduate, Albion native and journalist who condemned slavery before he was killed by a pro-slavery mob during an attack on his press in 1837.”

Former Trib publisher gets First Amendment award

Donnis Baggett

This from an AP news story: “Longtime Texas journalist and former Tribune-Herald publisher and editor Donnis Baggett was the recipient of the 2014 James Madison Award, presented by the Freedom of Information Foundation of Texas. . . . .The Madison award is given to those demonstrating a commitment to upholding the principles of the First Amendment. . . . Baggett leads the press association’s governmental affairs program, focusing on protecting open records, open meetings and public notices.Baggett worked for Texas newspapers for nearly 40 years before joining the press association in 2012.”

Reminder: Campaign Finance & First Amendment event tomorrow 

Tomorrow at noon the Heritage Foundation (214 Massachusetts Ave. N.E., Wash. D.C.) will host a panel on  campaign finance litigation and free  speech. The event will feature: Floyd Abrams, Erin Murphy, and Ronald Collins. Adam Liptak will be the moderator.  The event will also be streamed online.  Registration information is available here.

Volokh Watch 

Since Professor Eugene Volokh writes so much and so well on a variety of First Amendment issues, I’ve decided to create a special section with news items from his informative blog, the Volokh Conspiracy. Here are the headlines and links to a few recent posts:

• “Did California make it illegal for businesses to stop dealing with customers who insult them?,” Sept. 12, 2014
• “Ohio ban on knowingly false statements in political campaigns is unconstitutional,” Sept. 11, 2014 (See also Rick Hasen’s post on this)
• “No ‘boobie pillows’ for you (at least within 1,000 feet of a highway) — this is Bakersfield!,” Sept. 11, 2014
• “In Syracuse (N.Y.), it’s a crime to exhibit a coffin in any place visible to passersby,” Sept. 10, 2014

Video clip of the week

This clip from the Onion News Network: “Supreme Court Rules First Amendment Does Not Apply To Annoying Man“

Quick Hits

Scholarly Articles

• Charlotte Garden, “Unions and Campaign Finance Litigation,” 14 Nev. L.J. 364 (2014)
• Dustin B. Benham, “Dirty Secrets: The First Amendment in Protective-Order Litigation,” 35 Cardozo L. Rev. 1781 (2014)
• Renee Newman Knake, “Legal Information, the Consumer Law Market, and the First Amendment,” 82 Fordham L. Rev. 2843 (2014)
• Kristen Hosack, “Holy Smokes! Can the Government compel Tobacco Companies to Engage in Inflammatory Commercial Speach?,” 2014 U. Ill. L. Rev. 881 (Student Note)
• Jacqueline Waldman, “Prior Restraint and the Police: The First Amendment Right to Disseminate Recordings of Police Behavior,” 2014 U. Ill. L. Rev. 311 (Student Note)

Op-eds, Editorials, Stories & Cartoons

Nota bene

→ Ira Glasser,”Standing Strong for Free Speech: A Response to Geoffrey Stone,” Huffington Post, Sept. 12, 2014 (Geoffrey Stone post here)

→ Leahy statement on proposed constitutional amendment to permit to permit campaign finance reform, Sept. 11, 2014

→ Tony Mauro, “Justices Get Schooled in RapAmicus briefs emerge in First Amendment case,” National Law Journal, Sept. 15, 2014

→ Rick Hasen, “Danziger Cartoon Channels Anatole France in Describing CJ Roberts’ McCutcheon Opinion” (cartoon here)

• David Azerrad, “What’s Behind the Assault on the First Amendment?,” The Daily Signal, Sept. 17, 2014
• Ruthann Robson,”District Judge Finds Ohio’s Prohibition of Campaign Falsehoods Violates First Amendment,” Constitutional Law Prof blog, Sept. 15, 2014
• David Gelernter, “‘Free’ Speech at Yale,” National Review Online, Sept. 14, 2014
• George Will, “Senate extremism against free speech,” The Daily Telegram, Sept. 14, 2014
• Jim Gaines, “A constitutional amendment to take Big Money out of politics dies quietly,” Reuters, Sept. 12, 2014
• David Harsanyi, “Actually, Senators, You’re the Ones Who Threaten the Country,” Reason, Sept. 12, 2014
• Peter Roff, “The First Amendment Is Alive and Well,” US News & World Report, Sept. 12, 2014

Last FAN Column: #31 — ““Freedom from Speech” — a timely broadside“

Next FAN Column: #33 — Wednesday, Sept. 24th

New York Times v. Sullivan 50 Years Later:

Celebrating a Free Speech Landmark

→ The University of Oregon School of Journalism and Communications is hosting a conference on the Sullivan case. The schedule for the conference is set out below:

Friday, October 3, 2014 UO School of Law (Room 175)

8-8:30 a.m.          Registration — Location: outside Room 175

8:45-9 a.m.          Opening Remark

• Michael Moffitt, Dean and Phillip H. Knight Chair, UO School of Law

9-9:50 a.m.          Keynote Address: 

                             “The Anatomy of a Great Case: The People Behind the Precedent”

• Professor Ronald K.L. Collins, University of Washington, School of Law

9:50-10 a.m.         Break

10-10:50 a.m.        NYT v. Sullivan: Has it Withstood the Test of Time?

Moderator:            Professor Ofer Raban, University of Oregon, School of Law

Panelists:

• Professor Stephen Wermiel, American University, Washington College of Law
• Attorney Bruce Johnson of Davis Wright Tremain
• Attorney Ashley Messenger, NPR and American University School of Communication

11-11:50 a.m.        Oregon Law: Things Are Different Here

Moderator: Professor Carrie Leonetti, University of Oregon, School of Law

Panelists:

• Justice Jack I. Landau, Oregon Supreme Court
• Judge David Schuman, Oregon Court of Appeals
• Attorney Charlie Hinkle

12-1:00 p.m.          Break for Lunch

1:00 – 1:45 p.m.   Luncheon Keynote:  “The Press in Unprecedented Times”

• Former Executive Editor Mike Fancher, Seattle Times and Interim Director at SOJC George S. Turnbull Center

Location: Room 175

2-2:50 p.m.            International & Comparative Law: Still Resonating Abroad?

Moderator: Professor Ibrahim Gassama, University of Oregon, School of Law

Panelists:

• Attorney Paul Schabas, Blake, Cassels & Graydon LLP
• Attorney Charles J. Glasser Jr., Bloomberg News
• University of Oregon Professor Kyu Ho Youm, Jonathan Marshall First Amendment Chair, SOJC

2:50-3 p.m.             Break

3-3:50 p.m.            Journalism Practice & Teaching:

                               Breathing Space for an “Uninhabited, Robust, and Wide-Open” Press?

Moderator: Professor Tim Gleason, University of Oregon School of Journalism and Communication

Panelists:

• Les Zaitz, The Oregonian
• Brent Walth, Willamette Week
• Tom Bivins, John L. Hulteng Chair in Media Ethic, SOJC

4-4:15 p.m.           Closing Remarks

• Julianne Newton, Edwin L. Artzt Interim Dean, University of Oregon School of Journalism and Communication

4:15-4:45 p.m.       Reception

Location: Wayne Morse Commons

This is the hottest issue in campaign finance litigation right now. – James Bopp, Jr. 

James Bopp

What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.

James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”

Circuit split

Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).

In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:

Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”).  Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc.  v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).

We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.

→ Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.

→ Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.

→ Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.

→ The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”

→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).

New Litigation

Challenge to bans on controversial subway ads 

• Dana DiFilippo, “SEPTA’s ad refusal sparks free-speech fight,” Philly.com, Sept. 23, 2014:

“WHEN an anti-Islamic group decided to advertise on city buses and billboards this fall with photos of a terrorist poised to behead an American and a Muslim leader smiling at Adolf Hitler, transit officials in New York and Washington, D.C., huffed their disapproval – but allowed the ads to run. They had no choice, they said, because the ads were protected under the First Amendment. SEPTA’s officials disagreed and rejected the ads.”

→ But check out this: Dean Obeidallah, “To Fight Pam Geller, Join Our Comedy Jihad at the MTA,” The Daily Beast, Sept. 23, 2014 (“Anti-Muslim hate monger Pam Geller’s subway and bus poster campaign launches this week. I say we launch our own to fight her with laughs.”)

Challenge to Arizona law banning nude images

• ACLU, Arizona ACLU & the Media Coalition Press Release (Sept. 23, 2014):

“A broad coalition of bookstores, newspapers, photographers, publishers, and librarians filed a federal lawsuit today challenging a new Arizona law that criminalizes speech protected by the First Amendment. The plaintiffs are represented by the American Civil Liberties Union, the ACLU Foundation of Arizona, and the law firm Dentons US LLP, which is general counsel to the Media Coalition.”

“The ‘nude photo law’ makes the display, publication, or sale of nude or sexual images without the subject’s explicit consent a felony punishable by nearly four years in prison.  As written, the law could be applied to any person who distributes or displays an image of nudity – including pictures that are newsworthy, artistic, educational, or historic – without the depicted person’s consent, even images for which consent was impossible to obtain or is difficult to prove.”

“‘This law will have an unconstitutional chilling effect on free speech,’ said David Horowitz, executive director of the Media Coalition, whose members include the plaintiff associations of publishers, librarians, and booksellers. ‘To comply with the law, booksellers and librarians will have to spend countless hours looking over books, magazines, and newspapers to determine if a nude picture was distributed with consent. Many store owners will simply decline to carry any materials containing nude images to avoid the risk of going to prison.'”

→ The case: Antigone Books v. Horne (go here for the Media Coalition’s  backgrounder on the case and its press release here)

→ The complaint: see here

→ Counsel for Plaintiffs: Joshua S. Akbar (also: Michael A. Bamberger, Daniel J. Pochoda, Lee Rowland & Richard M. Zuckerman)

Commentaries:

• Jacob Sullum, “Going After ‘Revenge Porn’ with a Sledgehammer, Arizona Smashes the First Amendment,” Reason, Sept. 23, 2014
• Sarah Jeong, “Is Arizona’s Revenge Porn Law Overbroad?,” Forbes, Sept. 23, 2014

Privacy in Public? Texas Court Strikes down “improper photography” ban 

Judge Sharon Keller

In Ex Parte Thompson (Sept. 17, 2014), the Texas Court of Criminal Appeals held, by an 8-1 margin, that “Section 21.15(b)(1) of the Texas Penal Code, to the extent it proscribes the taking of photographs and the recording of visual images, is unconstitutional on its face in violation of the Free Speech clause of the First Amendment.” Presiding Judge Sharon Keller wrote the majority opinion and Judge Lawrence Meyers dissented, though without an opinion.

→ The facts: “The case involved Ronald Thompson, who was charged in 2011 with 26 counts of improper photography after taking underwater pictures of clothed children – most wearing swimsuits – at a San Antonio water park.” [source here]

In striking down the law as a facially-invalid content-based restriction subject to strict scrutiny, Judge Keller rejected all seven of the State’s arguments:

1. “The First Amendment is not even implicated by the statute because the act of photography is conduct and is not inherently expressive”;
2. “The act of pushing the button on the camera to take a picture was not necessarily communicative”;
3. “The improper-photography statute does not implicate the First Amendment because the elements of specific intent and lack of consent limit the scope of the regulated conduct to that which invades the privacy of another in an essentially intolerable manner”;
4. “The lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public”;
5. “Even if the First Amendment is implicated, the improper-photography statute constitutes a reasonable content-neutral restriction that serves legitimate and important government interests;”
6. “The statute serves the important government interest of protecting privacy by “protecting individuals from invasive covert photography” and “protecting individuals from having their images unconsensually exploited for the sexual gratifications of others”; and
7. “A statute may not be struck down on overbreadth grounds merely because it may apply to some protected speech.”

→ In commenting on the decision, University of Houston Law Center Professor Peter Linzer, who teaches First Amendment law, said: “It’s hard to see how you could make taking a picture a crime.”

→ “An amicus brief supporting Thompson was filed by the Reporters Committee for Freedom of the Press, which argued that the state could revise the law to avoid First Amendment challenges by focusing on circumstances that are not in public.”  [source here]

→ Merits brief for Defendant-Respondent — Donald Flannery, III

→ Prevailing Amicus Counsel — Professor Eugene Volokh: “I had the great pleasure and honor of arguing in Ex parte Thompson yesterday morning in the Texas Court of Criminal Appeals, representing the Reporters Committee for Freedom of the Press (as a friend of the court), through the UCLA First Amendment Amicus Brief Clinic — defense counsel agreed to split his time with me, and the court granted our motion for leave to do so.” [source here; amicus brief here]

In Memoriam: C. Thomas Dienes (1940-2014)

Although Tom was a brilliant man, he was very modest. . . . He had an astonishing knowledge of constitutional law and media law, and he was also deeply conversant in political theory and political philosophy. Despite all these accomplishments, Tom never insisted on his distinction. — Jerome Barron

Tom Dienes

The news of Professor Dienes’ death was slow in finding its ways to me. I was surprised and saddened to hear of his passing from Dan Solove. Tom died on April 24th of this year. Though I did not know him well, what I did know of him was that he was quite congenial and thoughtful. I was, however, very familiar with his work on the First Amendment and freedom of the press.

Tom was the Lyle T. Alverson Professor Emeritus of Law at George Washington University School of Law. “After receiving his J.D. and Ph.D. (as a Russell Sage Fellow in Law and the Social Sciences), Dienes began teaching law and political science at the University of Houston. He subsequently held a similar joint appointment at American University before joining the Law School faculty at George Washington University in 1980. . . .  Tom took a year’s leave of absence in 1988 to serve as general counsel to U.S. News and World Report, and he continued to serve as a legal consultant to the magazine until August 2002.” [source here]

He co-authored Constitutional Law: Principles and Policy, Cases and Materials (8th edition, 2012) and a variety of other works on constitutional law. His books on the First Amendment included his Newsgathering and the Law, co-authored with Lee Levine and Robert Lind and Handbook of Free Speech and Free Press (1979), co-authored with Jerome Barron. His scholarly articles in this area included:

• “Trial Participants in the Newsgathering Process” (2000)
• “Protecting Investigative Journalism” (1998)
• “Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan” (1992) (with Lee Levine)
• “Libel Reform: An Appraisal” (1989)
• “When Students Speak: Judicial Review in the Academic Marketplace” (1989) (with Annemargaret Connolly)
• “When the First Amendment Is Not Preferred: The Military and Other Special Contexts” (1987)
• “Trashing of the Public Forum: Problems in First Amendment Analysis” (1986)

“Tom was a very special person who, because he was so modest, never received the recognition he deserved,” said his friend and co-author Lee Levine.

Of course, the work he is most commonly known for is one that has long aided jurists, lawyers, law professors, and law students — his First Amendment in a Nutshell, co-authored with Jerry Barron. Countless times have I turned to that work for a concise and accurate rendition of this or that point of First Amendment law, and never once have I been disappointed.

And then there was his remarkable talent as a teacher. “While many know Tom as an intellectual,” recalled his colleague Jonathan Turley,  “he would probably brush away such a label in favor of the title he cherished to the day of his passing: teacher. Tom was a true teacher. He lived to educate others; to convey not only his knowledge but his deep love for the law. He measured his success not in the library of publications that he left but in the literally thousands of students that he touched in his lifetime. They are his truest legacy. His books merely memorialized his legal theories. It is his students who continue his true work and passion. For Tom, law was a living and a joyous thing.”

FYI: Law professors who argued 1-A free expression cases in the Supreme Court

Professor Mel Nimmer

Below is a list of full-time law professors who while on law faculties argued free expression cases that were decided by the Supreme Court on First Amendment grounds. Thus, though Laurence Tribe argued Nike v. Kasky (2003), the case was dismissed after it was argued. And then there is the case that was argued by Dean Erwin Chemerinsky — United States v. Apel (2013), which was decided on statutory grounds though First Amendment claims had been raised.

Here, then, is the updated list as I have compiled it. Please let me know if I have overlooked some names, which I suspect I may have.

• Thomas Emerson: Sweezy v. New Hampshire (1957)
• Herbert Wechsler: New York Times v. Sullivan (1964)
• ______________: Curtis Publishing Co. v. Butts (1967)
• Mel Nimmer: Cohen v. California (1971)
• Alexander Bickel: New York Times Co. v. United States (1971)
• Anthony Amsterdam: Branzburg v. Hayes (Caldwell v. United States)
• Jerome A. Barron: Miami Herald Publishing Co. v. Tornilllo (1974)
• William Canby: Bates v. State Bar of Arizona (1977)
• Telford Taylor: Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980)
• ___________: Hynes v. Mayor of Oradell (1976)
• Laurence Tribe: Richmond Newspapers v. Virginia (1980)
• ____________: Heffron v. International Society for Krishna Consciousness (1981)
• ____________: Sable Communications v. FCC (1989)
• ____________: Rust v. Sullivan (1991)
• ____________: United States v. United Foods (2001)
• ____________: Johanns v. Livestock Marketing Association (2005)
• David Goldberger: McIntyre v. Ohio Election Board (1995)
• John C. Jeffries, Jr.: Rosenberger v. University of Virginia (1995)*
• Michael McConnell: Rosenberger v. University of Virginia (1995)*
• _______________: Christian Legal Society Chapter v. Martinez (2010)
• James Blumstein: Brentwood Academcy v. Tennessee Secondary School Athletic Assn. (2001)
• Jeffrrey Renz: Shaw v. Murphy (2001)
• Rodney Smolla, Virginia v. Black (2002)
• Laurence Lessig,  Eldred v. Ashcroft (2003)
• Erwin Chemerinsky, Tory v. Cochran (2005)
• David Cole: National Endowment for the Arts v. Finley (1998)
• _________: Holder v. Humanitarian Law Project (2010)
• Mark Rienzi: McMullen v. Coakley (2014)

*  Professors Jeffries and McConnell appear to be only two full-time law professors who argued the same case against one another.

(Hat tip to Eugene Volokh, David Hudson, Lee Levine & Joel Gora)

Protests on plaza in front of Supreme Court — Constitutional?

This from Tony Mauro writing in Legal Times (Sept. 23, 2014):

A federal appeals court panel appeared ready on Tuesday to uphold a disputed law that makes it a crime to protest on the marble plaza in front of the U.S. Supreme Court. During an hourlong oral argument, three judges on the U.S. Court of Appeals for the D.C. Circuit seemed generally accepting of one of the government’s main justifications for the law—an argument that First Amendment advocates have viewed as weak.

• The case: Hodge v. Talkin
• The facts (per Mauro): “Harold Hodge Jr. of Maryland, who was arrested under the law in January 2011 for standing on the plaza while holding a small sign that read ‘The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans and Hispanic People.'”
• The governing federal statute: 40 U.S.C. 6135
• For the Petitioner: Jeffrey Light, the Rutherford Institute
• For the Government: Deputy Assistant Attorney General Beth Brinkmann
• ACLU amicus brief (per Arthur Spitzer & Adam Pulver)

New Knight Foundation study of high school students & First Amendment

According to a Knight Blog post: “During the past 10 years, Knight Foundation has funded five ‘Future of the First Amendment’ surveys, each probing what American high school students know and think about our most fundamental freedoms.This year, for the first time, American high school students show a greater overall appreciation for the First Amendment than do adults. More students than ever before say they are thinking about the First Amendment. Nine in 10 say people should be able to express unpopular opinions. Six in 10 say the press should not be censored by the government.” More than 10,000 high school students were surveyed.

Banned Books Week: Celebrating the Freedom to Read: Sept. 21-27, 2014

→ See link here for more information.

→ See also UNC observes First Amendment Day, September 23, 2014.

→ Related news item: Melissa Repko, “Highland Park ISD suspends seven books after parents protest their content,” Dallas News, Sept. 21, 2014

Video Flashback

→ Michael W. McConnell: “The Architecture of the First Amendment, The Meiklejohn Lecture: The Architecture of the First Amendment,” Wednesday, November 7, 2012

New book on history of censorship

The book: Robert Darton, Censors at Work: How States Shaped Literature (Norton, 2014, pp. 304)

→ See here for a review by Jonathan Yardley in the Washington Post, and here for review from Publishers Weekly.

→ See here for an excerpt that appeared in the New York Review of Books, and here for an excerpt that appeared in the Huffington Post.

Quick Hits

Nota Bene

→ Justice John Paul Stevens, “Oops!” (re “right” to contribute to out-of state elections), Administrative Law Section of the D.C. Bar, 2014 Harold Leventhal Lecture, Sept, 12, 2014 (hat tip to Josh Blackman)

→ William Baude, “Is there a right to contribute to out-of-state elections?,” Volokh Conspiracy, Sept. 22, 2014

Erin Murphy @ Heritage event on Campaign Finance Laws (on C-SPAN — go here)

Editorials, Op-eds, Q & As,  News Stories & TV-YouTube Coverage

September 23, 2014

• Rob Davis, “Forest Service says media needs photography permit in wilderness areas, alarming First Amendment advocates,” The Oregonian, Sept. 23, 2014
• Charles Dickerson, “Morrisey, other AGs file brief in Arizona First Amendment case,” West Virginia Record, Sept. 23, 2014
• Katie Kilmrtin, “Q & A with First Amendment Day speaker Greg Lukianoff,” Daily Tarheel, Sept. 23, 2014

September 22, 2014

• Elizabeth Nolan Brown, “FEC Chairman Talks ‘Dark Money’ and the Fine Line Between Free Speech and Censorship,” Reason, Sept. 22, 2014
• Marsha Thompson, “Madison County parents file freedom of speech lawsuit,” Ms News Now, Sept. 22, 2014
• Frances Dinkelspiel, “Events mark 50th anniversary of Free Speech Movement,” Berkeleyside, Sept. 22, 2014
• Eugene Volokh, “Mass. D.A. drops charges against protesters engaged in illegal blockade — because he agrees with their political opinions,” Volokh Conspiracy, Sept. 22, 2014
• Gene Policinski, “First Amendment: Social media no longer just free expression ‘toy box’,” GazetteXtra, Sept. 22, 2014

September 21, 2014

• Erik Eckholm & Richard Oppel, Jr., “Child Pornography Case Spurs Debate on Military’s Role in Law Enforcement,” N.Y.T., Sept. 21, 2014
• Jessica A. Levinson, “Expand free speech by limiting political money,” Sacramento Bee, Sept. 21, 2014

September 15-19, 2014

• Kristin Tate, “Texas Court: Ban on ‘Upskirt’ Photos Violates First Amendment Rights,” Breitbart, Sept. 19, 2014
• Bill Maurer, “First battle in the battle for the First Amendment,” The Hill, Sept. 15, 2014

→ Today in Civil Liberties History — Sept. 24, 1927: “Jay Near Publishes ‘Defamatory’ Articles, Heads for Supreme Court”

Last Scheduled FAN Column: #32 — “PA prosecutor targets teenager in Facebook-posting desecration case“

Last FAN Columns: #32.1 — “Cato hosts panel on First Amendment: Strossen discusses McCutcheon & history of ACLU stance“

#32.2 — “Upcoming Sullivan conference at University of Oregon“

Next Scheduled FAN Column: #34 — Wednesday, October 1st