In the various news feeds and pundit commentaries concerning the recent same-sex marriage case, the focus has been on the divide between the majority and dissenting opinions. Some side with the majority, others with the dissenters. Putting such differences aside for the moment, what is noteworthy is that while the Justices in the majority all spoke with one voice, the same was not true for the dissenters.

Though the judgment in Obergefell v. Hodges was 5-4, none of the four separate dissents garnered more than a total of three votes:

• 3 votes: Chief Justice Roberts’ dissent — joined by Justices Scalia and Thomas
• 3 votes: Justice Alito’s dissent — joined by Justices Scalia and Thomas
• 2 votes: Justice Scalia’s dissent — joined by Justice Thomas
• 2 votes: Justice Thomas’ dissent — joined by Justice Scalia

Notably, neither the Chief Justice nor Justice Alito signed onto any of the other dissents. Why?

The Scalia Dissent: Too confrontational?

While the Chief Justice and Justice Alito share many of the constitutional concerns stated by Justice Scalia (e.g., the need for judicial restraint, adherence to precedent, undermining the political process, and deference to the traditional roles of the states), they tend to be uneasy with the kind of in-your-face confrontational tone Justice Scalia employed in his unrestrained dissent.

It is a tried-and-true canon of civility: Attempt to avoid confrontational terms or phrases such as “hubris,” “egotistic,” “mummeries,” and “silly extravagances.” By that creed of civility it is unnecessarily vituperative to equate another Justice’s reasoning with “mystical aphorisms of the fortune cookie” or “pop-philosophy” or to refer to that Justice’s opinion as “judicial Putsch” – even if the seriousness of the latter is “not of immense personal importance” to you.

The Thomas Dissent: Too cabined or too natural law focused?

The Chief Justice and Justice Alito also did not sign onto Justice Thomas’ dissent. Why? Though it is more difficult to answer this question, one explanation is a possible disagreement over the contours of due process as Justice Thomas offered it up. That is, his conservative colleagues may have been uncomfortable with Thomas’ reliance on Blackstonian notions of due process – notions perhaps too cabined for their constitutional tastes. Consider in this regard Professor Michael Dorf’s observation over at SCOTUSblog: “To the extent that Justice Thomas would allow any substantive due process, it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone.”

And then there is Justice Thomas’ invocation of natural law and natural rights. The debate over the use and relevance of natural law has been an ongoing one in conservative circles. On that score, Chief Justice Roberts’ former boss, William Rehnquist, once found himself in the crosshairs of controversy brought on by a defender of natural law. See Harry V. Jaffa, Storm over the Constitution (1999) and his Original Intent and the Framers of the Constitution: A Disputed Question (1994) and his article “Judicial Conscience and Natural Rights,” 11 U. Puget Sound L. Rev. 219 (1987).

The Alito Dissent: Reservations about the “further decay” of marriage argument?

(drawing by Arthur Lien: courtartist.com)

While there is much similarity between the Roberts and Alito dissents on matters such as due process, equal protection, and the specter of vilifying people of faith, both nonetheless declined to affirm the other’s dissent. What might explain the Chief Justice’s unwillingness?

Did he have some reservations about the following?: “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.”

The Roberts Dissent: Too charitable?

(credit: WSJ)

If you believe (as Justice Alito seems to) that same-sex marriages may contribute to the “further decay” of marriage, then you are unlikely to be as generous of spirit as the Chief Justice was when he declared: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. . . .” By the same normative token, Justice Alito is not one who would appear to be inclined to say: “Many people will rejoice at [today’s] decision, and I begrudge none their celebration.”

Or what about this Roberts’ statement?: “The opinion describes the ‘transcendent importance’ of marriage and repeatedly insists that petitioners do not seek to ‘demean,’ ‘devalue,’ ‘denigrate,’ or ‘disrespect’ the institution. . . . Nobody disputes those points.” Nobody?

Here, too, speculation is more the measure than certainty.

Crisis of the Dissents Divided?

However close my speculations are to the mark, one thing is certain: there was no unanimity of thought strong enough to convince the four dissenting Justices to lend all of their names to a single opinion. Despite their strong differences with the majority opinion, they, too, had reservations about one another’s views of law and life and how those differences should be expressed.

* * * * 

(credit: NYT)

On a related point: What are we to make of the fact that none of the four liberal Justices who signed onto Justice Kennedy’s majority opinion in Obergefell found it necessary, or desirable, to write separate concurrences? The same was true with Justices Stevens, Ginsburg and Breyer in Romer v. Evans (1996) and Lawrence v. Texas (2003), and later with Justices Ginsburg, Breyer, Sotomayor and Kagan in United States v. Windsor (2013).

One would think that these four Justices would push for a more protective conception of equal protection concerning discrimination against gays and lesbians. No? Then again, perhaps these four think the body of law tracing back to at least Romer will suffice.  And so far it has.

When it issued its orders list today, the Supreme Court did the following:

1. In Berger v. American Civil Liberties Union of North Carolina it granted the petition for certiorari; the judgment is vacated, and the case is remanded to the United States Court of of Appeals for the Fourth Circuit for further consideration in light of Walker v. Sons of Confederate Veterans (2015).
2. In Thayer v. City of Worcester the petition certiorari was granted; the judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit for further consideration in light of Reed v. Town of Gilbert (2015), and
3. In Central Radio Co., Inc. v. City of Norfolk the petition certiorari was granted;the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Reed v. Town of Gilbert (2015).

The Court’s 2014-2015 Free Expression Docket

[last updated: 6-29-15 — what remains on the docket will either be resolved at “clean up” conference this Term or dealt with in late September when the Court has a “long conference.”]

Cases Decided 

1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Pending Petitions*

1. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
2. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

1. Walker-McGill v. Stuart
2. O’Keefe v. Chisholm
3. King v. Christie
4. Apel v. United States 
5. Dariano v. Morgan Hill Unified School District
6. The Bronx Household of Faith v. Board of Education of the City of New York 
7. Arneson v. 281 Care Committee
8. Kagan v. City of New Orleans
9. ProtectMarriage.com-Yes on 8 v. Bowen
10. Clayton v. Niska
11. Pregnancy Care Center of New York v. City of New York 
12. City of Indianapolis, Indiana v. Annex Books, Inc.
13. Ashley Furniture Industries, Inc. v. United States 
14. Mehanna v. United States
15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
16. Vermont Right to Life Committee, et al v. Sorrell

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

The enormous fine proposed by the FCC is also an extraordinary burden on protected speech. The FCC’s largest base fine for other types of violations by broadcasters is $10,000. — Jeffrey A. Marks, President & General Manager of WDBJ

* *  * * 

Travis LeBlanc, chief of the FCC’s enforcement bureau, said that the agency’s action “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.” (Variety, March 23, 2015)

Yesterday lawyers for WDBJ Television filed an Opposition to a FCC Notice of Apparent Liability (NAL) against the station. The 55-page opposition was filed by Jack N. Goodman and Robert Corn-Revere. The case is titled In the Matter of WDBJ Television, Inc. (files #s: EB-IHD-14-00016819 & EB-12-IH-1363).

The proposed FCC fine stemmed from a July 12, 2012 WDBJ newscast concerning a Roanoke County controversy over a former adult film star who had joined the local volunteer rescue squad. WDBJ covered the story and the dispute over the firing of a female volunteer. Parts of WDBJ’s story were illustrated from materials taken from the Internet, including some from an adult-film website.  “Due to equipment limitations,” Goodman and Corn-Revere argue, “station personnel were unable to see the full screen of the online material, and the eventual broadcast briefly displayed a small image of an erect penis at the extreme margin of the screen. The image appeared for 2.7 seconds during a three minute and ten second story, covered only 1.7 percent of screen at the far right edge, and prompted an immediate response from WDBJ once it became aware of the mishap.”

In response, on March 23, 2015 the FCC issued a NAL and a proposed fine of $325,000 — the maximum amount permissible under the Broadcast Decency Enforcement Act.

Dennis Wharton, spokesman for the National Assn. of Broadcasters, said, “NAB is disappointed with today’s remarkably punitive indecency fine proposed against WDBJ. Schurz Communications apologized for the fleeting image, which was clearly unintended. This unprecedented fine against a family-owned broadcaster with a demonstrated commitment to serving communities is wholly unwarranted.”  (Variety, March 23, 2015)

WDBJ’s lawyers contend that the FCC’s NAL “rests on incorrect factual premises” and that the Commission “misapplied its indecency standard to the WDBJ newscast.” As to the latter point, they make three basic arguments:

1. “The newscast was not graphic and explicit under Commission precedent”
2. “The broadcast did not dwell on or repeat sexual material,” and
3. “The broadcast did not seek to pander or titillate.”

Jack N. Goodman

Goodman and Corn-Revere also maintain that the FCC “lacks a constitutionally sound test for indecency.” In this regard, they offer three basic arguments:

1. “The Supreme Court neither upheld nor ratified the FCC’s indecency policy” (“The constitutional questions left open in Fox must be addressed.”)
2. “Devising a constitutional policy to regulate broadcast indecency requires great restraint” (The FCC must adhere to the First Amendment” and “Pacifica’s restrained enforcement approach is constitutionally required.”) and
3. “As applied to WDBJ, the proposed fine violates the First Amendment.”

Robert Corn-Revere

Additionally, Goodman and Corn-Revere contend that the FCC’s NAL “articulates an erroneous and unconstitutional standard for willfulness. On this point they contend that the FCC’s NAL is unlawful insofar as it “proposes to penalize WDBJ for an alleged indecency violation that was neither ‘willful” nor ‘repeated,’ as required by 47 U.S.C.  503 (b)(1).”

Finally, they argue that even if the Commission “could find that WDBJ violated the indecency policy, the proposed [fine] should be vastly reduced.” Here Goodman and Corn-Revere maintain that the FCC’s NAL “sets out various reasons — many of which are incorrect — for a [maximum fine], but utterly fails to explain why it is appropriate to impose a [fine] more than forty-six times the base amount for the inadvertent inclusion in a news program of a depiction of a sexual organ for less than three seconds.” As for the enhanced fines allowed for under the Broadcast Decency Enforcement Act of 2005, they argue that “Congress did not attempt to establish [the $325,000 fine] as the minimum or even the expected [fine], or to indicate any intent to override the Commission’s normal decision with respect to the amount of a [fine] in any particular case.”

→ This is quite a big deal, especially in its unanimity. — Richard Hasen, Election Law Blog

→ Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity. — Alan Morrison, lead counsel for the Plaintiffs

→ On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space. — Ilya Shapiro, co-counsel on amicus brief in support of the Plaintiffs.

Chief Judge Merrick Garland

“In a victory for good government, the en banc D.C. Circuit Court of Appeals today unanimously — and correctly — rejected a challenge to the constitutionality of the federal ban on campaign contributions by federal contractors. The ban applies to corporations, other entities and individuals who have federal contracts.” That is how Fred Wertheimer of Democracy 21 described yesterday’s ruling in Wagner v. Federal Election Commission. Democracy 21 joined with the Campaign Legal Center and Public Citizen to file an amicus brief in the Wagner case supporting the constitutionality of the government contractor contribution ban. (See 52 U.S.C. § 30119(a)(1))

The 62-page opinion was written by Chief Judge Merrick Garland, and there were no separate opinions. The other jurists sitting on the case were Circuit Judges Karen Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Kavanaugh, Sri Srinivasan, Patricia Millett, Nina Pillard, and Robert Wilkins.

Here are some highlights from Chief Judge Garland’s opinion:

1. Standard of Review: “We . . . proceed to examine whether, with respect to § 30119, the government has “‘demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.’”
2. Historical backdrop: “historical pedigree is significant. As the Court said in Beaumont, ‘[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of ‘careful legislative adjustment.’ [citation] Moreover, . . . the lineage of the statute makes clear that its objects are the legitimate and important purposes that the Commission claims they are.”
3. Quid pro quo corruption: “Of course, we would not expect to find — and we cannot demand — continuing evidence of large-scale quid pro quo corruption or coercion involving federal contractor contributions because such contributions have been banned since 1940. . . . [Even so, the] FEC has assembled an impressive, if dismaying, account of pay-to-play contracting scandals, not only in the above states, but also in New Mexico, Hawaii, Ohio, California, and elsewhere. [W]e think that the evidence canvassed thus far suffices to show that, in government contracting, the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration, has not dissipated. Taken together, the record offers every reason to believe that, if the dam barring contributions were broken, more money in exchange for contracts would flow through the same channels already on display.”
4. Significant change in government contracting: “[P]erhaps the most relevant change in government contracting over the past several decades has been the enormous increase in the government’s reliance on contractors to do work previously performed by employees. . . . If anything, that shift has only strengthened the original rationales for the contractor contribution ban by increasing the number of potential targets of corruption and coercion — targets who do not have the merit system protections available to government employees.”
5. Different rules for federal employers vs contractors: “Increased reliance on individual contractors — particularly retirees such as Brown and Miller — also raises a concern that some former federal employees may unwittingly violate § 30119 because they are unaware that they have become subject to a different set of restrictions as contractors. However, as FEC counsel advised the court, there is no criminal violation unless the individual knows his or her conduct violates the law.”
6. Corporations vs individual contractors: “The plaintiffs also question whether there is sufficient evidence of corruption or coercion specifically with respect to individual contractors, as compared to those organized as corporations or other kinds of firms. It is true that most of the examples set forth [earlier in our opinion] above involve firms. We see no reason, however, to believe that the motivations for corruption and coercion exhibited in those examples are inapplicable in the case of individual contractors.”
7. Two justifications: “Our historical review makes clear that the two Court-approved justifications for limitations on campaign activities — to protect against quid pro quo corruption and its appearance, and to protect merit-based public administration — were the justifications that lay behind the contractor contribution statute.”
8. “Closely drawn” requirement: “[T]he point of the ‘closely drawn’ test is that “‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.’” [citation] And we conclude that the ban at issue here is permissible in the circumstances that we address in this opinion: a regulation that bars only campaign contributions and that is imposed only on government contractors. . . . We do not discount the possibility that Congress could have narrowed its aim even further, targeting only certain specific kinds of government contracting or doing so only during specific periods. But as the Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”
9. Underinclusiveness: “We conclude that the contractor contribution ban is not fatally underinclusive. There is no doubt that ‘the proffered state interest actually underlies the law,” and that it can “fairly be said” that the statute “advance[s] a[] genuinely substantial governmental interest.’ [citations] The plaintiffs may well be right that the ban would be even more effective if it swept in more potential contributors. But §30119 “aims squarely at the conduct most likely to undermine” the important interests that underlie it, and ‘[w]e will not punish [Congress] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.'”

→ Additional claim: The Court also addressed and rejected the Fifth Amendment equal protection arguments raised by the Plaintiffs.

The Lawyers & Amici

• Alan B. Morrison argued the cause for plaintiffs. With him on the briefs was Arthur B. Spitzer
• Ilya Shapiro and Allen J. Dickerson were on the brief for amici curiae Center for Competitive Politics, et al. in support of plaintiffs.
• Kevin Deeley, Acting Associate General Counsel, Federal Election Commission, argued the cause for defendant. With him on the briefs were Harry J. Summers, Assistant General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
• J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and Donald J. Simon were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant.

* * *  *

Alan Morrison

Liberal & libertarian lawyers challenge contractor law

Alan Morrison, a seasoned appellate advocate and law professor, is known as a liberal. In 1971, for example, he worked with Ralph Nader to cofound the Public Citizen Litigation Group, the litigation arm of the famed consumer advocacy organization. In that capacity, he was the lawyer who successfully argued Virginia Pharmacy Bd. v. Virginia Consumer Council (1976), which recognized First Amendment protection for certain kinds of commercial speech (in that case for a non-profit corporate advocacy group).

In Wagner v. FEC he was co-counsel with Arthur B. Spitzer of the ACLU in challenging a little known section of the Federal Election Campaign Act that provided: “[A]ny person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal office.” In their brief to the Court of Appeals  Morrison and Spitzer argued that the three plaintiffs were prevented from making their intended campaign contributions. “One of the plaintiffs,” they noted, “is a law professor who had a contract to do a study for the Administrative Conference of the United States; the other two are retired federal employees who continue to work for their former agency on a contract basis. Unlike every other U.S. citizen who does not have a federal contract, they are forbidden by [federal law] from making a contribution of even $1 to any federal candidate, political party, or political committee.” Such a law, Morrison and Spitzer maintained, violated both the equal protection component of the Fifth Amendment and the First Amendment. A lower court denied those claims, whereupon review was sought in the court of appeals. Yesterday, their hopes were dashed by a 10-0 vote.

Kevin Deeley, Acting FEC Associate General Counsel

“We are disappointed,” Morrison e-mailed me, “in the result and in the failure of the Court to appreciate the unnecessarily broad reach of the total ban on individual contractors such as these plaintiffs from making any contributions in a federal election. We were surprised at the more than dozen favorable citations to McCutcheon v. FEC, a 2014 case in which another over-broad contribution law was struck down by the Supreme Court as not being closely drawn. Even more difficult to understand were the similar number of citations to the 5-4 ruling Williams-Yulee v. Florida Bar, in which the candidate for judicial office was only precluded from making personal solicitations for campaign funds, while retaining the full ability to raise money through a separate committee.  Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity.”

Morrison and Spitzer received some help by way of an amicus brief submitted on their clients’ behalf by the Center for Competitive Politics and the Cato Institute. “This case presents an unusual question,” wrote Allen Dickerson for the Center and Institute (Cato’s Ilya Shapiro was co-counsel on the brief.)  “While suits challenging limits on political contributions are familiar, the statute at issue here completely prohibits a broad group of private, individual citizens from making any contribution. Such sweeping prohibitions are seldom enacted, and courts have rarely assessed their constitutionality. Nevertheless, the limited pronouncements made by the Supreme Court on the subject suggest that strict scrutiny is the appropriate standard of review in this instance” and that the appellants should, therefore, prevail.”  They did not.

Ilya Shapiro

Here is how Ilya Shapiro summed up his response to the Wagner decision: “This is a fascinating and fairly technical opinion, ultimately disappointing to those like me who supported the challenge but probably not one that will have repercussions beyond politically minded contractors. Nobody short of Justice Hugo Black has argued that the First Amendment is absolute — and while the D.C. Circuit rejected the subtle arguments made against the ban on contractor contributions, this is an argument over line-drawing rather than first principles. I still think that the ban is overbroad and that the government should have to prove that its targeted class of people is somehow too dangerous to be allowed to participate in the political process (and also that the ban applies only to that set of uniquely dangerous people). But the court disagreed — unanimously, which was the real surprise here and will alas lessen the Supreme Court’s appetite to hear the case. On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space.”

The Ramifications of Wagner: 

Over at his own blog, Lyle Denniston thinks Wagner could have important legal/political ramifications on “two other potential campaign law controversies”:

1. “The first of those possible changes has been under study by President Obama and his White House aides for some time: a plan to issue a presidential order to force business firms doing business with the federal government to disclose publicly all of their political activity.  Although contractors are banned from making direct political contributions to candidates or campaign organizations, they may channel money into politics in other ways.” [→ See Daniel I. Weiner, Lawrence Norden & Brent Ferguson, “Requiring Government Contractors to Disclose Political Spending,” Brennan Center for Justice ]
2. “The second possible revision was a study by the Internal Revenue Service — now suspended, perhaps for an indefinite period, because of political opposition — to revise the rules on eligibility fo tax-exempt status of private groups that are active in funding federal election campaigns. Current IRS rules allow many such groups to gain tax-exempt status on the theory that they are doing ‘charitable’ work. The IRS had draft plans to severely restrict that status for such groups.”

Professor David Skover, co-author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014), had this to say about the Wagner ruling:

Considering the elimination of all issues involving independent expenditures, the ruling in this case is not surprising. Despite some obvious differences between the Hatch Act and the law challenged here, a First Amendment victory would have put into question the continuing viability of the Hatch Act and Letter Carriers, and that the Circuit Court judges were clearly unwilling to do.

→ See also: Charles Tiefer, “Today’s Wagner Decision Encourages an Obama Order on Campaign Contributions by Federal Contractors,” Forbes, July 7, 2015

Newseum Releases 2015 State of the First Amendment Report

This from a press release from the Newseum Institute:

Gene Policinski of the Newseum Institute

The State of the First Amendment survey, conducted each year since 1997 by the Newseum Institute’s First Amendment Center, tests Americans’ knowledge of their core freedoms and samples their opinions on First Amendment issues of the day.

The 2015 survey questions covered topics including the use of Confederate flags on license plates, perceptions of news media bias, photography of police by the public, the use of police “body cams” and whether the public should have access to images from these cameras. Other topics included religious objections to providing wedding-related services to same-sex couples, the impact on religious liberty of the recent U.S. Supreme Court decision legalizing same-sex marriage nationwide, and whether cartoonists should be free to draw images of the Prophet Muhammad.

Other questions explored the extent of support for student speech when writing about school officials, public support for National Security Agency surveillance and whether individuals, corporations and unions should be able to donate as much as they wish to candidates.

The survey again found that most Americans are unable to name more than one or two of the five freedoms in the First Amendment —religion, speech, press, assembly and petition— and that one-third cannot name any of the five.

Three-quarters of Americans say it “does not go too far” in ensuring Americans’ freedom. That’s a jump from 57% last year after the Boston Marathon bombing in 2013 stirred public debate about the role of social media during a crisis and the media’s use of shocking images, according to State of the First Amendment 2015, a report by the Newseum Institute’s First Amendment Center in partnership with USA TODAY.

A year ago, 38% said the First Amendment goes too far, but the current survey shows only 19% agrees with the sentiment. The study saw a similar dive in public opinion and a subsequent recovery after the 2001 terrorist attacks, the authors noted.

“Once again there is a falloff in the number of those who say the First Amendment goes too far when we move away from a terrorist attack,” says Gene Policinski, chief operating officer of the Newseum Institute, one of the authors of the study. “We ought to be very vigilant when these attacks occur” and not hastily pass laws that limit freedoms. “The law are permanent, the emotions that surround these events are not.”

The nationwide sampling was done by telephone between May 14 and 23, and reached 1,002 adults age 18 or older.

→ The full report can be found here.

→ Video interview with Gene Policinski here.

Strossen Speaks at ACS on 2014-2015 Term 

Professor Nadine Strossen

On July 1, 2015 New York Law Professor Nadine Strossen spoke at the American Constitution Society’s 2014-2015 Supreme Court Review conference. She was one of five speakers on a panel (moderated by Tom Goldstein) discussing the past Court Term. Her remarks focused on the Court’s First Amendment free speech decisions rendered during the past Term.

Professor Strossen’s comments centered on Walker v. Sons of Confederate Veterans and Reed v. Town of Gilbert. 

→ In the course of her comments, Professor Strossen quoted Robert Corn-Revere:”The Walker opinion began with the eight scariest words in First Amendment law: ‘Justice Breyer delivered the opinion of the Court.'”

Heritage Foundation to Host Conference

Tomorrow, July 9th, the Heritage Foundation will host its Scholars & Scribes Review the Rulings: The Supreme Court’s 2014-2015 Term.

Panel I (11:00 a.m. to 12:00 p.m.)

Moderator: John Malcolm, The Heritage Foundation

1. Michael Carvin, Jones Day; Oral advocate in King v. Burwell
2. John Elwood, Vinson & Elkins; Oral advocate in Elonis v. United States
3. Andrew Pincus, Mayer Brown; Oral advocate in Williams-Yulee v. The Florida Bar

Panel II (12:00 p.m. to 1:00 p.m.)

Moderator: James Swanson, The Heritage Foundation

1. Jess Bravin, The Wall Street Journal
2. Adam Liptak, The New York Times
3. Mark Sherman, Associated Press

→ To attend, go here.

UCI Law School to Host Conference

On July 13th the University of California at Irvine Law School will host its 5th Annual Supreme Court Term in Review  conference.

Panelists 

Moderator: Rick Hasen, UCI Law

1. Erwin Chemerinsky, UCI Law
2. Linda Greenhouse, Yale Law School/The New York Times
3. Song Richardson, UCI Law
4. Kannon K. Shanmugam, Williams & Connolly LLP
5. Hon. Jeffrey S. Sutton, U.S. Court of Appeals for the Sixth Circuit

Journalist to Receive First Amendment Award

Mike Donoghue

The Burlington Free Press reports that “longtime journalist and educator Mike Donoghue of South Burlington has been selected to receive the Matthew Lyon Award for his lifetime commitment to the First Amendment and the public’s right to know the truth in Vermont.”

“The Vermont Press Association, which represents the interests of 11 daily and about four dozen non-daily newspapers circulating in Vermont, will honor Donoghue at its annual meeting and awards banquet at noon Thursday, July 16 at the Capitol Plaza in Montpelier.”

“Donoghue, an award-winning veteran news and sports writer for the Burlington Free Press, is being recognized for efforts in his spare time working as an adjunct professor of journalism at St. Michael’s College, as a longtime officer with the Vermont Press Association and his volunteer efforts with various groups including New England First Amendment Coalition, New England Newspaper and Press Association and the Society for Professional Journalists. . . .”

“The Lyon Award is named for a former Vermont congressman who was jailed in 1798 under the Alien and Sedition Act for sending a letter to the editor, criticizing President John Adams. While Lyon was serving his federal sentence in a Vergennes jail, Vermonters re-elected him to the U.S. House of Representatives. Lyon is credited with ousting Adams when he cast the deciding vote in favor of Thomas Jefferson when the 1800 presidential race went to Congress for a final determination.”

Forthcoming Books 

1. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Critical University Studies, Jan. 2016)
2.  Edoardo Tortarolo, The Invention of Free Press: Writers and Censorship in Eighteenth Century Europe (Springer, November 2, 2015)
3.  Bernard Williams, editor, Obscenity and Film Censorship: An Abridgement of the Williams Report Cambridge Philosophy Classics, Oct. 31, 2015)
4. Mickey Huff & Andy Lee Roth, editors, Censored 2016: The Top Censored Stories and Media Analysis of 2014-15 (Seven Stories Press, Oct. 6, 2015)

New & Forthcoming Scholarly Articles 

1. Michal Buchhandler-Raphael, “Overcriminalizing Speech,” Cardozo Law Review (June 2015)
2. Erika Manderscheid, “We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment,” Boston College Law Review (forthcoming 2015)
3. Bruce M. Owen, “Umping the Political Game” (The Problem of Systemic Political Corruption), SSRN (June 30, 2015)

New & Notable Blog Posts

1. Ruthann Robson, “Anti-Masking Laws, the Ku Klux Klan, and the First Amendment,” Constitutional Law Prof Blog, July 1, 2015
2. Eugene Volokh, “No speech that ‘degrade[s] or call[s] into question the integrity’ of judges on courthouse sidewalks,” Volokh Conspiracy, July 3, 2015

News, Op-eds, & Commentaries 

1. A.J. Higgins, “Lawyers question LePage’s First Amendment defense,” BDN Politics, July 8, 2015
2. Gene Lyons, “Why the GOP has the First Amendment upside-down,” NorthWest Herald, July 6, 2015
3. “Donald Trump and the First Amendment in his $500 million lawsuit,” The National Constitution Center, July 1, 2015

The 2014 Term: The Roberts Court & the First Amendment 

The 2014 Term is now over and with it comes our respective takes on it. Here are a few of my observations as I first set them out in a post on SCOTUSblog:

Voting record

Williams-Yulee was the Chief Justice’s thirteenth First Amendment free-expression opinion (majority or plurality) for the Court. He leads in the tallies for the Roberts Court, with Justices Kennedy and Scalia trailing with five opinions apiece followed by Justices Alito and Breyer. (Alito’s last was in 2014 in Harris v. Quinn and Breyer’s last in 2009 in Locke v. Karass.)

The unanimous vote in Reed was the thirteenth such vote rendered by the Roberts Court in a First Amendment free-expression case. This was only the third time that the Court vindicated a rights claim by way of a unanimous vote. The last one was in McCullen v. Coakley (2014).

Unusual twists: Cases decided 

There were some unusual twists this Term. For example, Justice Clarence Thomas broke ranks and voted with the Court’s liberal bloc in the Walker case. It was also noteworthy that Justices Thomas and Scalia were on different sides. One of the last times that occurred in a First Amendment free-expression case was in Virginia v. Black (2003), in which Justice Thomas dissented while Justice Antonin Scalia joined the majority.

While it is rare, this Term the Chief Justice was on the losing side in a First Amendment free-expression case (Walker). This is the second such case in which this has occurred, the only other being Christian Legal Society v. Martinez (2010).

Equally unusual, in denying the First Amendment claim in Williams-Yulee, Chief Justice Roberts revealed, yet again, that strict scrutiny is not always fatal in fact. The last time that occurred was in Holder v. Humanitarian Law Project (2010), another case in which Roberts wrote for the Court. It is ironic that the Chief Justice, who is one of the Court’s strongest First Amendment stalwarts, was the one who authored the two opinions in which a law survived strict scrutiny analysis. Moreover, in light of the Williams-Yulee ruling and the debate over strict scrutiny review between Justices Thomas and Kagan in Reed, this Term’s cases may signal the beginning of some rethinking concerning standards of review in First Amendment cases.

In another unusual twist, the Williams-Yulee majority denied a First Amendment claim in a campaign-finance case. It is the first case out of the seven in which opinions were handed down during the Roberts Court era. It was also the first time that the Chief Justice denied a First Amendment claim in a campaign-finance case.

→ There is more and you can read it at the SCOTUSblog  post.

The Court’s 2014-2015 Free Expression Docket

[last updated: 6-30-15 — what remains on the docket will be resolved in late September when the Court has a “long conference.”]

Cases Decided 

1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Vacated and Remanded

1. Berger v. American Civil Liberties Union of North Carolina 
2. Thayer v. City of Worcester 
3. Central Radio Co., Inc. v. City of Norfolk

Review Granted for Next Term

1. Friedrichs v. California Teachers Association, et al. 

Pending Petitions*

1. Center for Competitive Politics v. Harris

Review Denied*

1. Walker-McGill v. Stuart
2. O’Keefe v. Chisholm
3. King v. Christie
4. Apel v. United States 
5. Dariano v. Morgan Hill Unified School District
6. The Bronx Household of Faith v. Board of Education of the City of New York 
7. Arneson v. 281 Care Committee
8. Kagan v. City of New Orleans
9. ProtectMarriage.com-Yes on 8 v. Bowen
10. Clayton v. Niska
11. Pregnancy Care Center of New York v. City of New York 
12. City of Indianapolis, Indiana v. Annex Books, Inc.
13. Ashley Furniture Industries, Inc. v. United States 
14. Mehanna v. United States
15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
16. Vermont Right to Life Committee, et al v. Sorrell

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

The Court of Appeals for the Armed Forces (the highest military court) has just agreed to review a “true threats” case in United States v. Rapert (No. 15-0476/AR). The issue the five-member court will consider is “whether the finding of guilty .  . . for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of circumstances and in light of the Supreme Court’s decision in Elonis v. United States (2015).” 

As reported in CAAFLOG, there is no opinion in Rapert on the Army Court of Criminal Appeals’ website, which may be because that “court summarily affirmed the conviction.” Communicating a threat is an  Article 134 UCMJ, offense, which not only requires some misconduct (i.e., communicating a threat), but also that the conduct is either prejudicial to good order and discipline or service discrediting.

As  Zachary Spilman pointed out in his CAAFLOG post: “for [Eric L.] Rapert a footnote in a recent CAAF opinion looms large.” That opinion is United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) and the pertinent language in a footnote in that case is:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

 (ht: Jeffrey Barnum)

→ Update on Elonis on remand to 3rd Circuit: According to Ronald H. Levine, who argued the Elonis case in the Third Circuit, “the Third Circuit has not yet acted other than to recall its original mandate. Whether it will vacate and remand to the district court or seek briefing per the concurrence of Justice Alito is unknown.”

Headline: “Lawmakers want Internet sites to flag ‘terrorist activity’ to law enforcement”

A story in the Washington Post by Ellen Nakashima reports that “[s]ocial media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee. The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.”

“. . . It would not require companies to monitor their sites if they do not already do so, said a committee aide, who requested anonymity because the bill has not yet been filed. The measure applies to ‘electronic communication service providers,’ which includes e-mail services such as Google and Yahoo. . . .”

→ Senate Bill 1705: Intelligence Authorization Act for Fiscal Year 2016: The relevant provision of the proposed measure is Section 603: Requirement to report terrorist activities and the unlawful distribution of information relating to explosives.

Subsection (a) of section 603 concerns the duty to report and provides:

→ The ACLU’s Gabe Rottman said that the Senate “committee had secretly inserted a provision in a spending bill that would require social media companies to report posts about “any terrorist activity” to the government. The bill is hopelessly vague on what that means. That’s because it goes far beyond a reporting requirement for wrongful conduct—terrorist activity—and will invariably result in the reporting of speech about terrorism—including by activists and other peaceful people with forceful opinions.”

“In practice, he added, “were this to become law, websites will likely do a couple of things”:

1. “First, they will overcorrect and start taking down content wholesale. They will monitor posts for keywords like ISIS or “don’t tread on me” (a libertarian slogan that some identify with white supremacist and anti-government ideology) and pull them. That will chill an enormous amount of online debate . . .”
2. “Second, and perhaps worse, companies—faced with the proposal’s utter lack of guidance on what the law requires them to report—will apply it inconsistently. . . .”

(ht: Emma Llansó, Free Expression Project: See also Ms. Llansó’s “Intel Authorization Bill Would Turn Online Service Providers into Law Enforcement Watchdogs,”) 

10th Circuit rejects compelled speech & compelled silence claims in Little Sisters Case

Yesterday a majority of the judges of a Tenth Circuit three-judge panel rejected the compelled speech and compelled silence claims, among others, raised by the Appellants in Little Sisters of the Poor Home for the Aged v. Burwell. Judge Scott Matheson, Jr. wrote for the majority (joined by Judge Monroe G. McKay) with Judge Bobby R. Baldock writing in dissent, but on RFRA grounds.

llya Shapiro & Ira Glasser on Redskins trademark flap

The Redskins are thus the first unintended casualty of the Walker ruling in last month’s Confederate license-plate case.

“Whatever you think of the wisdom in keeping the moniker of Washington’s professional football team, it should be uncontroversial that the Redskins name and logo are protected by the First Amendment. Similarly, while I agree with South Carolina’s decision to remove the Confederate battle flag from its capitol, if someone wants to drive a bright orange car with that ensign painted on top, it’s his right.”

“After all, there are few categories of expression that the Supreme Court has held to be constitutionally unprotected: child pornography and incitement of violence, for example. “Offensive” speech — however defined and whoever decides — isn’t on that list. . . .”

“Many people disagree about the proper scope of intellectual property law, but it’s bizarre to think that every trademark represents government expression. After all, I didn’t learn of the Redskins ruling from the government-endorsed Washington Post when reading my government-endorsed Facebook feed on my government-endorsed iPhone. . . .”

Source: Ilya Shapiro, “Loss for Redskins and Free Speech,” The Star Press, July 11, 2015

→ The trademark opinion is: Pro-football, Inc. v. Blackhorse (Dist. Ct. E.D. Va., July 8, 2015). Robert L. Raskopf is the attorney for the team, which plans to appeal the ruling to the Court of Appeals for the Fourth Circuit.

→ Pro-football’s memorandum to the District Court re its constitutional arguments can be found here.

Ira Glasser

→Ira Glasser weighs in: “I think the recent federal court denial of trademark rights to the Washington franchise on the ground that the name is publicly offensive and contrary to public policy is or should be unconstitutional, in my view: at a time when homosexual relationships were a crime in more than half the states, a civil rights group called the Gay Activists Alliance was denied incorporation by the state of New York on a similar ground. We (the NYCLU) sued and won. And what about a group to advance the rights of racial intermarriage at a time when that was illegal in many states and also against federal law and “public policy,” or an organisation whose name advocated the repeal of Prohibition or the availability of contraception when they were crimes, against public policy and ‘offensive’ to vast majorities?”

“I am offended by people who take offense and want to use the law to enforce their sensibilities. Does that mean I should be able to use the law to punish them? Punishing speech is like using poison gas; dangerous when the wind changes and blows it back on you.” (e-mail: July 13, 2015)

See Matter of Gay Activist Alliance v. Lomenzo, 31 N.Y.2d 965 (1973) (Harold M. Weiner for GAA & Eldon V. C. Greenberg for New York Civil Liberties Union, amicus curiae)

→ See also:

1. Brian Focarino, “Bad News for the Redskins Trademark – Registration Exempt from First Amendment Scrutiny,” IP Watchdog, July 14, 2015
2. Elizabeth Slattery, “Judge Cancels ‘Redskins’ Trademark Registration for Being Offensive. Does That Violate First Amendment?,” The Daily Signal, July 13, 2015

Minnesota court upholds solicitation-for-prostitution law over 1-A challenge

The case is State v. Washington-Davis (Minn. Ct. App., July 13, 2015). The issue in the case was whether a Minnesota statute that criminalizes the solicitation and promotion of prostitution was facially overbroad and violated the First Amendment  and article I, section 3, of the Minnesota Constitution. In an opinion by Judge Carol A. Hooten for the Minnesota Court of Appeals the judges upheld the state law over constitutional challenge.

In her opinion, Judge Hooten declared:

1. “We conclude . . . that the speech proscribed by the statute is outside the ambit of the First Amendment’s protection because it is speech integral to criminal conduct.”
2. “Appellant argues that the statute is overbroad because it criminalizes the solicitation, inducement, or promotion of consenting adults to portray themselves in: (1) non-obscene adult films depicting sexual penetration and/or sexual contact; (2) other films depicting sexual contact; (3) non-obscene adult photographs depicting sexual penetration and/or sexual contact; and (4) other photographs depicting sexual contact. Appellant’s argument is unpersuasive because the statute does not criminalize or prohibit any of these activities.”
3. “[E]ven if [the state prostitution statute] criminalizes or prohibits lap dancing as defined by appellant, the statute is not overbroad because it does not proscribe constitutionally protected activity. . . . Even if lap dancing as defined by appellant is not obscene, the statute is still not overbroad because there is no substantial over breadth here. . . . We agree with the state: ‘Balanced with the state’s important interest in prohibiting the promotion of the sale of human bodies for sexual gratification, any incidental intrusion onto the limited First-Amendment ground identified by appellant is constitutionally tolerable.'”

→ Ben Bartenstein, “Minnesota man loses First Amendment claim in prostitution case,” St. Paul Pioneer Press, July 13, 2015

New Book: The story of America’s earliest extant play & the First Amendment 

University of Illinois at Urbana-Champaign associate professor of theatre Peter A. Davis has a fascinating new book; it is titled From Androboros to the First Amendment: A History of America’s First Play (University of Iowa Press, 2015). Here is an abstract from the publisher:

“The story of America’s earliest extant play begins with a petty crime—a crime that would have passed largely unnoticed had it not been for one fact: it prompted a beleaguered royal governor of one of Britain’s colonies to lash out at his enemies by writing a biting satire. Androboros, A Bographical [sic]Farce in Three Acts (1715), is universally acknowledged as the first play both written and printed in America. Its significance stems not simply from its publication but from its eventual impact. The play inadvertently laid the foundation for one of the defining rights of the nation that would eventually emerge some seventy-five years later—the First Amendment of the Constitution of the United States, guaranteeing a free press and freedom of expression.”

“Androboros was not just the first of its kind, it was also ahead of its time in many ways, preceding the harsh political satires and farces of the later eighteenth century by some fifty years. Such plays served a small but essential role in promoting political thought among the colonists. Written by anonymous authors and passed from hand to hand, these short, crude, and often bawdy plays and dialogues were rarely acted due to their inflammatory lampoonery. Nevertheless, they provided an opportunity for disgruntled colonists to vent their grievances and promote their ideas to fellow citizens. The farces of the late eighteenth century drove home the meaning and message of the American Revolution.”

“Equally significant is that Androboros may have influenced a few of the key political discourses published in the 1730s, and these works in turn may well have shaped the future of the American political landscape for the next several decades and even into the modern era. But as a closet drama intended only to be read by close friends and political supporters, this play has languished as a minor footnote in American intellectual history. Scholarly research published to date has been, for the most part, inadequate and occasionally inaccurate. This study remedies that oversight, providing a full analysis as well as an annotated typescript and facsimiles of the original printing.”

Alschuler on limiting political contributions 

Professor Albert Alschuler has a new 100-page-plus law review article in the Florida Law Review. The piece is titled “Limiting Political Contributions after McCutcheon, Citizens United, and SpeechNow.” Here is the abstract:

Professor Albert Alschuler

“There was something unreal about the opinions in McCutcheon v. FEC. These opinions examined a series of strategies for circumventing the limits on contributions to candidates imposed by federal election law, but they failed to notice that the limits were no longer breathing. The D.C. Circuit’s decision in SpeechNow.org v. FEC had created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional.”

“This Article argues that the D.C. Circuit erred; Citizens United v. FEC did not require unleashing super PAC contributions. The Article also considers what can be said for and against a bumper sticker’s declarations that “MONEY IS NOT SPEECH!” and “CORPORATIONS ARE NOT PEOPLE!” It proposes a framework for evaluating the constitutionality of campaign-finance regulations that differs from the one currently employed by the Supreme Court. And it proposes a legislative scheme of campaign-finance regulation that would effectively limit contributions while respecting the Supreme Court’s campaign-finance decisions.”

Articles from The Supreme Court Review 

1. William Gould IV, “Organized Labor, the Supreme Court, and Harris v Quinn: Déjà Vu All Over Again?“
2. Joseph Fishkin & Heather K. Gerken, “The Party’s Over: McCutcheon, Shadow Parties, and the Future of the Party System“
3. Leslie Kendrick, “Nonsense on Sidewalks: Content Discrimination in McCullen v Coakley“

Quote of the Week: Erwin Chemerinsky on Walker

I obviously like the result in [the Walker] case . . . but I find the reasoning of the majority very troubling. . . . I worry that this government speech doctrine is creating a lophole in the First Amendment that will lead to a great deal of restriction of speech. (July 13, 2014, UCI Law School)

Supreme Court Term Reviews: Webcasts  

1. “UCI Law 5th Annual Supreme Court Term in Review“
2. Heritage Foundation, “Scholars & Scribes Review the Rulings: The Supreme Court’s 2014-2015 Term“

Forthcoming Symposium: “The Constitution on Campus” 

The University of Miami Law Review has announced the topic for its 2016 Symposium: “The Constitution on Campus: Do Students Shed Their Rights at the Schoolhouse Gates?” Scholarship from this annual event will be featured in the symposium issue to be published in the Volume 71 (Winter Edition) of the Miami Law Review.

Forthcoming Scholarly Articles

1. Ronald Fein, “Foreword: Money, Politics, Corporations, and the Constitution,” Constitutional Commentary (forthcoming, 2015)
2. Erika Manderscheid, “We Need Professional Help: Advocating for a Consistent Standard of Review When Regulations of Professional Speech Implicate the First Amendment,” Boston College Law Review (forthcoming 2015)

New YouTube Posting 

• “Congressman Steve King: Confederate Flag is Protected by the First Amendment,” C-SPAN, July 9, 2015

Notable Blog Post

• Ruthann Robson, “Ninth Circuit Finds Constitutional Problems with Arizona’s Anti-Ethnic Studies Law,” Constitutional Law Prof Blog, July 7, 2015

News, Op-eds. & Blog Commentaries

1. Ian Adams, “What California’s anti-SLAPP law can teach the country about free speech,” R Street, July 13, 2015
2. “First Amendment lawyer discusses Free Speech restrictions, First Coast News, July 13, 2015
3. Jane Kirtley, “Hulk Hogan’s Sex Tape Trial Tests the First Amendment,” Newsweek, July 12, 2015
4. Isabelle Cavazos, “Recognizing microaggression doesn’t police free speech,” The Oracle, July 12, 2015
5. Mark Woods, “Not a simple trespassing case; a matter of free speech,” Jacksonville.com, July 11, 2015
6. Nik Fisher, “Hate Speech, Free Speech and Conversation,” Huffington Post, July 11, 2015
7. Gene Policinski, “First Amendment and the power of ‘fear’,” The Star Press, July 10, 2015

As reported in the New York Times: “The Wisconsin Supreme Court on Thursday ruled that a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign cannot continue. The decision of the court ends the specter of a criminal investigation as Mr. Walker pursues the Republican nomination for president. Mr. Walker, who has won three elections for governor over the last five years including a recall challenge in 2012, officially announced his bid on Monday.”

Today the Wisconsin Supreme Court handed down in ruling in Wisconsin v. Peterson, et al. Justice Michael Gableman wrote the lead opinion. Justice David T. Prosser wrote a long concurring opinion in which Chief Justice Patience Drake Roggensack joined as to Sections IV and V of the opinion, and Justices Annette Kingsland Ziegler and Michael Gableman joined as to Section IV of the opinion. Justice Shirley Abrahamson wrote an opinion concurring and dissenting in part. Justice Patrick Crooks likewise wrote an opinion concurring and dissenting in part. All tolled the various opinions came to 634 paragraphs. (Justice Ann Walsh Bradley did not participate).

The case concerned charges that Governor Scott Walker’s campaign team violated certain campaign finance laws during the 2012 recall elections by working in conjunction with dark money groups.

In relevant part, the Court declared:

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

It also added:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

→ Over at the Election Law Blog, Professor Richard Hasen noted:

Today’s lengthy and contentious 4-2 ruling dividing the Court on partisan/ideological lines, from the Wisconsin Supreme Court ending the so-called “John Doe” probe is significant for three reasons: (1) it removes a cloud from the Scott Walker presidential campaign; (2) it guts, perhaps for years, the effectiveness of the state of Wisconsin’s campaign finance laws, and (3) it reenforces conservative beliefs that they are the victims of frightening harassment, a belief which is likely to lead conservative judges to strike more campaign laws.  The case also raises significant questions about judicial recusal which go unanswered, and provide one of two potential bases to seek U.S. Supreme Court review in this case. Still, high court review seems unlikely.

Check with the Election Law Blog as Professor Hasen has additional substantive comments on the case.

“[I]f we lose focus on what is at the core of the free-speech protection by concentrating on . . . peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction.” — Justice Samuel Alito

Recently, Justice Samuel Alito participated in a video-recoreded interview with Bill Kristol. In the “Conversations with Bill Kristol” program the Justice discussed his legal education and the workings of the Supreme Court. He also discussed four First Amendment free-expression cases: United States v. Stevens (2010), Snyder v. Phelps (2011), United States v. Alvarez (2012), and Citizens United v. Federal Election Commission (2010).

Below are some excerpts I transcribed from the video-recorded interview in which Justice Alito discussed the First Amendment, this in response to questions posed to him by Mr. Kristol. I have added captions to the transcript and have edited it in places as well. (There is also a transcript of the entire interview  (login required) on the “Conversations with Bill Kristol website.)    

Following the exchange between the Justice and Mr. Kristol, I added some preliminary commentaries on what Justice Alito’s remarks may suggest about his larger First Amendment jurisprudence.  

Finally, I ended with some general information about Justice Alito and his free-speech jurisprudence.  

The Stevens Case

Justice Alito on “Conversations with Bill Kristol”

The Justice’s discussion of Stevens — the videoing of animal cruelty case — was largely descriptive. What concerned Justice Alito about the case the fact that it was “virtually impossible to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?”

Because of overbreadth problems, seven Justices voted to strike down the law on First Amendment grounds while Justice Alito felt otherwise and dissented.

The Phelps Case

Here, too, much of the discussion of Phelps — the military funerals protest case — was descriptive. What concerned the Justice was the fact that in “this particular case the . . .  [protesters] had placards that said horrible things about [the soldier being buried] . . . It was very distressing to the family members, who were in attendance.”

“So they were sued under a very well-established tort that goes back to the nineteenth century — the intentional infliction of severe emotional distress. And I thought that this tort constituted a reasonable exception to the First Amendment, but my colleagues disagreed about that.”

William Kristol

Mr. Kristol: “. . . What about the obvious sort of simple argument that . . . it is a slippery slope, that you cannot curtail speech? That is kind of the argument that the majority made, in one way or  the other, I would say.”

Justice Alito: “Well I think that some members of the majority — this is not based on inside information, this is what I get from reading the opinion — I think that there are those who would support the majority decision in both those cases for exactly that reason. So if we say, even in these outrageous situations, ‘we will not tolerate any abridgment of freedom of speech,’ then when something comes along that I would regard, and I think our cases would regard as really being at the core of the free-speech protection, these decisions provide a guarantee, or they provide a wall of proaction against a bad decision in those areas. If I really believed that to be the case, I might think it was an appropriate tradeoff. I don’t think that’s the case. I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”

The Alvarez Case

Justice Alito: “So what I think has been going on in those two cases and another one where I was in dissent, this time not by myself, in United States v. Alvarez, which had to do with the constitutionality of a statute passed by Congress called ‘The Stolen Valor Act,’ [which] prohibited a false claim of having received a military medal. . . .”

Mr. Kristol: “Which was happening a lot at the time.”

Justice Alito: “It was happening a lot. People were making up, you know, claiming to have won the Congressional Medal of Honor . . . “

Reflecting on Stevens, Phelps and Alvarez, Justice Alito stressed that “those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech.”

He then developed that point as noted below.

Protecting Core Political Speech

Justice Alito: “I think freedom of speech protects and serves many purposes, but I believe, and I think the Court has said that at the core, whatever other purposes it may serve, it is vitally important for democratic self-government. If people cannot debate public issues, if they cannot debate the relative merits of political candidates, then democracy is basically impossible. So I think that is the core of the protection. These cases involving . . . depictions of animal cruelty, the protest at military funerals, [and] falsely claiming to have won the Congressional Medal of Honor don’t involve anything like that.”

“And if we lose focus on what is at the core of the free-speech protection by concentrating on these peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction. In the cases that we’ve had that I think involve core free speech. . . the chief example that I would give from my time on the Court is the Citizens United case. . . . [N[ow that [case] came out five to four . . . . Citizens United, I think, is core political speech. It is a video about a candidate for the Presidency of the United States. If that’s not protected by First Amendment free speech, by the First Amendment free speech guarantee, I don’t know what is.”

“So on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.”

Mr. Kristol: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.”

Justice Alito: “I don’t think it works.”

Mr. Kristol: “You also make the argument, as I recall, in at least one or two of those three dissents, you make more of a positive argument for the virtues, for the right, for . . . the ability of the community to draw certain boundaries around civility or civilized behavior almost, mostly in the case of the soldiers’ funerals or all of them really, the animal cruelty [and the] lying [case]. Those are all things a community would have a reasonable interest in discouraging, to say the least.”

Justice Alito: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. I would not make the same argument in a case . . . involving political speech. I thought all of them were cabined by specific rules, very reasonable rules. So in the animal cruelty case, I thought that was very similar to the rationale . . . against child pornography. Which is that you can’t produce child pornography without abusing a child and by stamping out child pornography, or trying to stamp out child pornography, you are attacking the underlying abuse – same thing [holds true] with these crush videos. You couldn’t stamp them out without preventing the creation and the circulation of the videos. . . . I think that kind of an argument is a dangerous argument when you’re talking about political speech. . . .”

The discussion ended with some brief additional comments about hate speech in Europe.

[ht: Tony Mauro]

Commentary

Justice Alito’s exchange with Mr. Kristol helps to give us a better understanding of the Justice’s First Amendment jurisprudence. In light of what was said in that exchange, here are a few ideas that come to mind, albeit preliminary ideas:

1. The Irony of Protecting Peripheral Speech While Diluting Core Speech: Justice Alito finds it curious, to say the least, that the Court can be near unanimous in cases such as Stevens and yet badly divided in cases such as Citizens United. The former he sees as peripheral speech whereas the latter he sees as core speech. And yet, the case for the former seems to be stronger in the eyes of several of his colleagues. This troubles him.
2. The Democratic Self-Goverance Norm: Justice Alito places great stock in this norm: “I think freedom of speech . . . is vitally important for democratic self-government.” Of course, this seems incontestable. But I sense that there is more at stake here than a defense of the obvious. That is, it seems that this democratic self-governance norm is key to Justice Alito’s First Amendment jurisprudence, so much so that once the Court moves off that normative dime it may be venturing into the realm of unprotected speech. 
3. Campaign Spending Furthers the Democratic Self-Goverance Norm: While Justice Alito (like Justice Stephen Breyer and Yale Law School Dean Robert Post) places great First Amendment emphasis on the democratic self-governance norm (some would say too much), they part company when that norm is applied in the context of campaign spending, especially when done by corporations (non-profit or for-profit). Thus, Justice Alito joined the majority in McCutcheon v. Federal Election Commission (2014) while Justice Breyer invoked the democratic self-governance norm in his dissent. As Justice Breyer viewed it in that case, Justice Alito’s vote and his concurrence delegitimated the democracy norm: “Taken together with Citizens United v. Federal Election Comm’n., today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”  
4. Reasonable Exceptions to the First Amendment: Justice Alito seems willing to deny protection for speech in at least two general instances: First, where the harm alleged is one of long-standing pedigree (e.g., the tort of the intentional infliction of emotional distress), and where the speech in question is peripheral. In the first instance, Justice Alito declared: “I thought that this tort constituted a reasonable exception to the First Amendment.” In the second instance, recall Mr. Kristol’s statement that given the harms alleged in Stevens, Phelps and Alvarez, “those are all things a community would have a reasonable interest in discouraging.” And recall Justice Alito’s response: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. .”
5. Rejection of the Slippery Slope Argument: Contrary to the conventional free-speech wisdom, Justice Alito rejects the proposition that if you deny protection to trivial or offensive nonpolitical speech, you make it that much easier to deny protection to serious core speech. Recall Mr. Kristol’s statement: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.” And the Justice’s response: “I don’t think it works.” Recall, too, his other comment: “I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”
6. The “Substantial Core” Exception to the Overbreadth Doctrine: Note Justice Alito’s concern about the Stevens case: It is “virtually impossible,” he declared, “to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?” His answer was yes, for largely the same reasons as the Court in New York v. Ferber (1982). In such instances, Justice Alito also appears to be far less sensitive to problems of overbreadth (or substantial overbreadth) than his colleagues. That is, he seems willing to cut lawmakers some constitutional slack when, as he wrote in his Stevens dissent, the law in question “has a substantial core of constitutionally permissible applications.” Finally, and this may be something of a stretch, in all of this one is reminded of what then Justice William Rehnquist said about commercial speech in Posadas de Puerto Rico Ass. v. Tourism Co. (1986): “In our view, the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling . . . .” While I am not categorical on this count, the comparison does seem beyond the pale.

Justice Alito’s First Amendment Free-Expression Opinions

 Majority Opinions

1. Harris v. Quinn (2014) (5-4: 1-A claim sustained)
2. Knox v. Service Employees International Union (2012) (7-2: 1-A claim sustained) 
3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0: 1-A claim denied)
4. Davis v. Federal Election Commission (2008) (5-4: 1-A claim sustained)

Separate Opinions 

1. Walker v. Sons of Confederate Veterans (2015) (5-4: dissenting)
2. Williams-Yulee v. The Florida Bar (2015) (5-4: dissenting)
3. Reed v. Town of Gilbert (2015) (9-1: concurring)
4. McCullen v. Coakley (2014) (9-0: concurring in the judgment)
5. United States v. Alvarez (2012) (6-3: dissenting)
6. Nevada Commission on Ethics v. Carrigan (2011) (9-0: concurring)
7. Brown v. Entertainment Merchants Association (2011) (7-2: concurring)
8. Snyder v. Phelps (2011) (8-1: dissenting)
9. United States v. Stevens (2010) (8-1: dissenting)
10. Christian Legal Society v. Martinez (2010) (5-4: dissenting)
11. Locke v. Karass (2009) (9-0: concurring)
12. Morse et al. v. Frederick (2007) (5-4: concurring)
13. Randall v. Sorrell (2006) (6-3: concurring)

→ See also Elonis v. United States (2015) (statutory free speech case) (7-2: concurring & dissenting in part)

Video Clips of Justice Alito

1. Lives in the Law | Associate Justice Samuel Alito (Duke University)
2. U.S. Supreme Court Justice Samuel Alito on the Bill of Rights (National Constitution Center)
3. Justice Alito Interviews for the Job (C-SPAN)
4. Samuel Alito, Associate Justice, Part 1 (interview with Bryan A. Garner)
5. Hon. Samuel Alito, Associate Justice, Part 2 (interview with Bryan A. Garner)
6. Supreme Court Justice Samuel Alito Speaks at Pepperdine School of Law
7. Justice Samuel Alito addresses ISI’s Fourth Annual Dinner for Western Civilization (Part I)
8. Justice Samuel Alito addresses ISI’s Fourth Annual Dinner for Western Civilization (Part II)
9. Three Supreme Court Justices Return to Yale
10. Supreme Court Confirmation hearings: Judge Alito’s Opening Statement

The headline on the official website of New York State reads: “Governor Cuomo Signs First-in-the-Nation Legislation to Combat Citizens United.” The news story begins by noting:  “Governor Andrew M. Cuomo today signed first-in-the-nation legislation (S.8160/A.10742) to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The legislation also takes significant steps to strengthen disclosure requirements for political consultants and lobbyists who provide services to sitting elected officials or candidates for elected office by requiring them to register with the state and reveal their clients.”

“This new legislation,” the news release continues, “will work to restore the people’s faith in government by instituting the strongest anti-coordination law in the country and explicitly prohibiting coordination in New York State election law for the first time. The legislation expressly identifies which activities constitute prohibited coordination, and strictly prohibits coordination in egregious scenarios, such as the ‘independent’ spender being an immediate family member of the candidate, as well as in subtle scenarios, such as the dissemination of a candidate’s campaign material by supposedly ‘independent” groups.'”

“Additionally, the legislation increases penalties for lobbying violations, while providing enhanced due process for individuals under investigation for potential violations.”

NYCLU Opposes Law

Robert A. Perry, the Legislative Director of the New York Civil Liberties Union, took issue with the law shortly before Governor Andrew Cuomo signed the legislation. “The bill,” he stressed, “is not only constitutionally unsound; it would promote public policies that are inimical to the mission of not-for-profit organizations that operate in the public interest.”

The legislation, he added, “includes several provisions that would regulate activity that is unrelated to electoral campaigns — including lobbying, as well as communications outside the definition of lobbying that addresses matters of public concern. Nevertheless, if enacted in law, the proposed legislation would direct government officials to regulate, and circumscribe, New Yorkers’ rights of speech and association.” Mr. Perry summarized his the NYCLU’s opposition to the measure this way:

1. “[G]overnment regulation of lobbying and the imposition of disclosure requirements are consistent with the First Amendment only if they are limited to ‘direct communication’ with elected officials to influence legislation.”
2. “[T]he legislation as well ast the state’s lobbying law and rules require the disclosure of information on contributors to organizations that engage in lobbying, even if the contributed funds are never utilized for that purpose.”
3. [T]he mandated disclosure of personal information about contributors will undoubtedly have a ‘chilling effect’ on the exercise of protected speech and petition activities,” and
4. [T]he First Amendment requires that the proposed regulations provide for exemptions for controversial organizations upon a showing of a ‘reasonable’ likelihood of harm from the disclosures.”

For those reasons and others, “the NYCLU objects to the legislation.”

[NB: The proposed measure was not amended after the NYCLU filed its letter of opposition to Governor Cuomo.]

→ See generally: National ACLU amicus brief (July 29, 2009) in support of Appellant in Citizens United.

Liberal Groups “Strongly” Oppose Legislation

Opposition to the New York law was also expressed by the following groups:

• Citizens Union
• Common Cause of New York
• League of Women Voters of New York State
• New York Immigration Coalition, and
• New York Public Interest Group

In an August 22, 2016 letter to Governor Cuomo, the groups stated:

Citizens United Group Loses Charitable Solicitation Suit 

Jack Bouboushian, writing for the Court House News Service, reported that a “federal judge on Monday dismissed Citizens United’s claims that its donors would face harassment or retaliation if their names are made public, as required by New York law. New York requires every charitable organization to file a copy of its IRS Form 990 Schedule B, a list of its donors, with the state’s attorney general before the charity may solicit donations in the state.”

In a story by Lia Eustachewich, writing in the New York Post, it was reported that  a federal judge “sided with New York Attorney General Eric Schneiderman . . . in shooting down a lawsuit filed by Citizens United over the disclosure of key information about the group’s donors.”

“The conservative not-for-profit sued Schneiderman in 2014 in order to block him from making it reveal the names, addresses and contribution amount from donors before soliciting state funds — as charitable organizations are required to disclose.”

“Citizens United argued it was in violation of its First Amendment rights and invaded the privacy of its donors.”

“‘The complaint states not a single plausible claim upon which relief can be granted,’ federal judge Sidney Stein wrote in an 18-page opinion that granted Schneiderman’s motion to dismiss.”

“Last year, then judge also dismissed Citizens United’s motion for a preliminary injunction against the enforcement of the state policy.”

Possible appeal 

This from New York Daily News: “‘We are reviewing all of our options at this time, including a possible appeal to the 2nd Circuit U.S. Court of Appeals, and are confident that in the end today’s order will not stand,’ said Michael Boos, Citizens United vice president and general counsel, in a statement.”

→ See also Judge: Citizens United must disclose donor information to NY, Associated Press, August 29, 2016

APSA Panels on Money in Politics

→ This from Rick Hasen over at the Election Law Blog:

From Campaign Finance Institute:

If you are going to the American Political Science Association convention in Philadelphia September 1-4, we’d like you to know about a panel being sponsored by the Campaign Finance Research Group as well as two related panels. We hope to see you there! 

CAMPAIGN FINANCE RESEARCH GROUP

Round Table: Money and Politics, 2016: Sat, September 3, 12:00 to 1:30pm, Marriott, Room 411

On the weekend before the traditional start of the general election season, this round table will focus on what we have learned about post-Citizens United politics from fundraising and spending in the four elections since the case was decided. Was Super PAC and other non-party money (and advertising) in the presidential primaries a major factor, or largely wasted? What about in the less visible congressional primaries? What questions should we take into the general elections from lessons learned in this year’s primaries and other recent elections? How does 2016 so far give us a better handle on the systemic impacts of change in these past four federal election cycles? And what do we predict for the weeks between now and November 8 (Election Day)?

Participants: Robert Boatright (Clark U.); Erika Franklin Fowler (Wesleyan U.); Robin Kolodny (Temple U).; Michael Malbin, (University at Albany and The Campaign Finance Institute); Travis Ridout -(Washington State U.)

LAW AND POLITICAL PROCESS GROUP

Buckley v. Valeo at 40: New Thinking, New Directions on Campaign Finance

Thursday, September 1, 8:00 to 9:30am, Marriott 414

Forty years ago, the United States Supreme Court decided the case of Buckley v. Valeo, allowing some but not all limits on campaign financing in U.S. elections. In more recent years, including in the 2010 case of Citizens United v. FEC, the Court has moved in a deregulatory direction. What is the future of campaign financing in the U.S.? Do reform attempts lead to increased political polarization? Should the Court reconsider whether equality is a compelling reason for reform? This panel considers recent works and new directions in campaign finance law, including La Raja and Schaffner’s “Campaign Finance and Political Polarization,” Hasen’s “Plutocrats United,” and Drutman’s “The Business of America is Lobbying.”

Chair: Guy-Uriel Charles (Duke Law School). Presenters: Richard Hasen (UC, Irvine Law Scool); Raymond La Raja (U. Mass.); Brian Schaffner (U. Mass); Lee Drutman (New America); Diana Dwyre (Cal. State, Chico); Joel Gora (Brooklyn Law School).

U.S. Federal Campaign Finance in a time of Transition / Sat, September 3, 8:00 to 9:30am, Marriott, Salon KL

A group of academics are working together to identify what we do and don’t know about campaign finance in American federal elections. The U.S. system of campaign finance is undergoing a major transformation. The group’s efforts are being funded by the Hewlett Foundation, and we were convened by Nate Persily of Stanford University. The group is comprised of Steven Ansolabehere, Robert Boatright, Adam Bonica, Bruce Cain, Diana Dwyre, Erika Franklin Fowler, Kenneth Goldstein, Rich Hall, Keith Hamm, Eitan Hersh, Robin Kolodny, Ray LaRaja, David Magleby, Kenneth Mayer, Nolan McCarty, Jeffrey D. Milyo, David Primo, John Sides, James Snyder, Charles Stewart, Lynn Vavreck, and Abby Wood. Two prominent election lawyers, Robert Bauer and Ben Ginsberg, one from each party, are also participating in the conversations and facilitating contacts for the task force with the two parties.

Chair: Nathaniel Persily (Stanford). Participants: Diana Dwyre (Cal. State, Chico); Erika Franklin Fowler (Wesleyan U.); Robin Kolodny (Temple U); Travis Ridout (Washington State U.); David Primo (Rochester); David Magleby (Brigham Young); Jeffrey Milyo (Missouri); Abby Wood (USC Law)

U Chicago “Welcome” Letter Triggers Controversy 

“Historically, the left has been much more protective of academic freedom than the right, particularly in the university context,” said Geoffrey R. Stone, a University of Chicago law professor who specializes in free speech issues. Conservatives “suddenly became the champions of free speech, which I find is a bit ironic, but the left is divided.”

→ In a welcome letter to freshmen, the College made clear that it does not condone safe spaces or trigger warnings, The Chicago Maroon, August 2016 (letter signed by John Jay Ellison, Dean of Students in The College)

→ Geoffery R. Stone, Free Expression in Peril, Chronicle of Higher Education, August 26, 2016

→ Committee on Freedom of Expression at the University of Chicago, Report of the Committee on Freedom of Expression (2015) (Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, Chair)

1. Jonathan Turley, Free speech should not be big news, USA Today, August 29, 2016
2. Mark Tushnet, More on the University of Chicago letter on “trigger warnings” (Parts I & II), Balkinization, August 28, 2016
3. Stella Xu, It’s obvious that U of Chicago is clueless about what trigger warnings actually mean, The Tempest, August 28, 2016
4. Mark Graber, University Speech and “Safe Spaces,” Balkinization, August 26, 2016
5. Kwevin Gannon, U Chicago’s anti-safe spaces letter isn’t about academic freedom. It’s about power, Vox, August 26, 2016
6. Richard Perez-Pena, Mitch Smith & Stephanie Saul, University of Chicago Strikes Back Against Campus Political Correctness, New York Times, August 26, 2016
7. Emily Willingham, U Chicago Dean Gives Trigger Warning In Letter Denouncing Trigger Warnings, Forbes, August 26, 2016
8. Robby Soave, Outrage Over U. Chicago Trigger Warning Letter Shows Power of Political Correctness, Reason, August 26, 2916
9. University Of Chicago Letter To New Students Addresses PC Culture On College Campuses, Fox News, August 26, 2016 (YouTube clip)
10. Lisa Belkin, Behind the University of Chicago ‘trigger warning’ letter, Yahoo News, August 26, 2016
11. Steven Strahler, U of C welcome letter ignites ‘safe space’ debate, Crain’s, August 25, 2016
12. Kevin Gannon, Trigger Warning: Elitism, Gatekeeping, and Other Academic Crap, The Tattooed Professor, August 24, 2016

Upcoming Conference: Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses

→ 2016 Minnesota Law Review Symposium, Friday, October 21, 8:15 a.m.–4:00 p.m., Mondale Hall, University of Minnesota Law School

Key Note Speech (Broad Issues Facing Higher Education)

• Geoffrey Stone
  • Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School

Panel One: University Code of Conduct Policies that Limit Student Speech

Universities, to promote inclusion, have instituted policies that punish students for offensive or discriminatory speech. These codes of conduct raise an important question: how much prohibition on speech is too much?

• Will Creeley
  • Vice President of Legal and Public Advocacy, FIRE
  • Censorship by Crying Wolf: Misclassifying Student and Faculty Speech as Threats

• Mary-Rose Papandrea
  • Professor of Law and Associate Dean for Academic Affairs, University of North Carolina School of Law
  • The Free Speech Rights of University Students
• Alexander Tsesis
  • Raymond & Mary Simon Chair in Constitutional Law and Professor of Law, Loyola University, Chicago, School of Law
  • Campus Speech Codes: History, Contemporary Issues, and Proposal

Panel Two: Perspectives on the First Amendment and Public Universities

This panel will begin with a discussion led by Richard Delgado about the many ironies created by the collision of the First Amendment and public universities. We will then turn to two panelists with valuable insights from their experiences outside of the academy—Judge Alex Kozinski and Nekima Levy-Pounds.

• Richard Delgado
  • John J. Sparkman Chair of Law, University of Alabama School of Law
  • Four Ironies of Campus Climate
• Alex Kozinski
  • Judge, United States Court of Appeals for the Ninth Circuit
• Nekima Levy-Pounds
  • President, Minneapolis chapter of the NAACP

Panel Three: Academic Freedom

The Supreme Court in Keyishian v. Board of Regents wrote: “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

This panel will discuss how universities may balance the creation of a safe and welcoming environment with academic freedom. How may a university, if at all, shape professorial conduct through its policies?

• Heidi Kitrosser
  • Professor of Law, University of Minnesota Law School
  • Higher Education, Free Speech and the PC Narrative
• Robert M. O’Neil
  • Professor of Law Emeritus, University of Virginia Law School
  • Academic Freedom to Deny the Truth – Beyond the Holocaust
• Vikram Amar
  • Dean and Iwan Foundation Professor of Law, University of Illinois College of Law
  • How Much Expressive Freedom do Professors at Public Universities Really Enjoy

October Conference: Scalia & the First Amendment 

→ For more information about the symposium, please contact the FALR Symposium Editors, Hannah Smoot, hsmoot@live.unc.edu and Ryan Arnold, rmarn@live.unc.edu.

Texas Road Sign Law Struck Down

The Austin, Texas Statesman reported that a “state appeals court has overturned a law that allowed Texas officials to regulate signs along highways and interstates, saying key sections of the 1972 Texas Highway Beautification Act violate free speech rights”.

“Limits on outdoor advertising, the legacy of efforts by Lady Bird Johnson to reduce eyesores along the nation’s growing highway system, cannot be enforced because the law improperly regulates billboards and signs based on what they say, the Austin-based 3rd Court of Appeals ruled.”

“Signs, for example, are treated differently if they relate to elections, advertise activities at a business or point to a scenic or historic attraction, the court said. . . .”

“Historic HOWL” — Flying Dog Brewery Hosts Latest Free Speech Lecture 

Writing in the Frederick News-Post, Imade Borha reported on the latest lecture hosted by the Flying Dog Brewery:

Ron Collins (the one on the right)

“During the nuclear family conformity of America’s postwar era, Allen Ginsberg wrote a poem about drugs, homosexuality and casual sex. Years before the Stonewall riots, Ginsberg was an unknown poet reciting “Howl” on the dirt floor of Six Gallery in 1955. What followed included the 1957 obscenity trial of Ginsberg’s publisher, Lawrence Ferlinghetti, the owner of City Lights Books. Ferlinghetti won the case, and “Howl” is now an influential poem that expanded free speech rights.

“Author and First Amendment law professor Ronald K.L. Collins recounted the history and legacy of Howl at Freedom Reads, Flying Dog Brewery’s event series, in mid-August. Collins spoke from the extensive research of Mania, an in-depth look at the troubled lives of the Beat Generation artists, that he co-authored with David M. Skover. Passionate about artistic free speech, Collins stood for his entire lecture on the tiny Flying Dog Brewery stage while audience members sipped beers in the tasting room. He played snippets of Ginsberg’s Howl performance and an elderly Ferlinghetti reflecting on his defiance. Collins frequently paused to share anecdotes of the first “Howl” performance, from the crowd’s reaction, to the mythical note Ferlinghetti sent offering a publishing deal. . . . “

→ First Amendment lawyer Robert Corn-Revere is scheduled to give the next lecture (on Anthony Comstock and censorship).

New & Forthcoming Books

•  Robert J. McWhirter, Bills, Quills and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights (American Bar Association, 2015)

Abstract: At a time when much of the national debate regards the basic rights guaranteed by the Bill of Rights, it’s vital to understand exactly what that means: what did the Framers know?

Lawyer and scholar Robert J. McWhirter’s monumental history of the Bill of Rights traces the origins of the amendments over the span of nearly a thousand years, with many tangents into the history of literature, religion, film, sports and popular culture, and ensures that his fellow citizens will be well-armed to defend their rights.

A tour de force of legal scholarship, historical perspective, and cultural allusion, this book belongs on the bookshelf of every citizen, history buff, and lawyer.

• Eric Heinze, Debating Hate Speech (Hart Publishing, June 1, 2017)

New & Forthcoming Scholarly Articles

• Claudia Haupt, Unprofessional Advice, University of Pennsylvania Journal of Constitutional Law (forthcoming 2017)

Claudia Haupt

Abstract: Professional speech should receive robust First Amendment protection. It should be shielded from state interference that seeks to prescribe or alter the content of professional advice. But how should we decide what advice falls within the scope of defensible professional knowledge? Where, in other words, does First Amendment protection for professional speech end and tort liability for professional malpractice begin? This Article provides a theoretical foundation to distinguish professional from unprofessional advice.

1. Jack Balkin, Information Fiduciaries and the First Amendment, Davis Law Review (2016)
2. Jane Bambauer, The Relationships Between Speech and Conduct, Davis Law Review (2016)
3. John T. Bennett, The Harm in Hate Speech: A Critique of the Empirical and Legal Bases of Hate Speech Regulation, Hastings Constitutional Law Quarterly (2016)
4. Ruben J. Garcia, Politics at Work After Citizens United, Loyola Los Angeles Law Review (2016)
5. Hadey Phillips, Online Bullying and the First Amendment: State Cyberbullying Statutes After People v. Marquan M., North Carolina Law Review Addendum (2016)
6. Kyle Langvardt, The Doctrinal Toll of Information as Speech, Loyola University Chicago Law Journal (2016)
7. Marc A. Greendorfer, The Inapplicability of First Amendment Protections to BDS Movement Boycotts, Cardozo Law Review de novo (2016)
8. Alexander Epstein, Shaun McCutcheon v. FEC: More Money, No Problem, California Law Review (2016) (student note)
9. Steven Ballew, Panhandling and the First Amendment: How Spider-Man is Reducing the Quality of Life in New York City, Brooklyn Law Review (2016) (student note)
10. Katherine P. McGrath, Developing a First Amendment Framework for the Regulation of Online Educational Data: Examining California’s Student Online Personal Information Protection Act, Davis Law Review (2016) (student note)
11. Katherine Geddes, Student Speech — Why Bell Tolls a Review of Tinker’s Application to Off-Campus Online Student Speech, Southern Methodist University Law Review (2016) (student note)
12. Alison J. Best, Elonis v. United States: The Need to Uphold Individual Rights to Free Speech While Protecting Victims of Online True Threats, Maryland Law Review (2016) (student comment)

New & Notable Blog Posts 

1. Eugene Volokh, University of Chicago tells freshmen: Don’t expect ‘trigger warnings,’ ‘safe spaces’ or disinvitations of controversial speakers, The Volokh Conspiracy, August 26, 2016
2. Ilya Somin, A warning against trigger warnings, The Volokh Conspiracy, August 25, 2016
3. Ruthann Robson, Sixth Circuit’s Mixed Ruling on First Amendment Challenges to Kentucky’s Ethics Code for Judicial Elections, Constitutional Law Prof Blog, August 24, 2016

News, Editorials, Commentaries, Op-eds & Press Releases

1. Sara Maslar-Donar, University of Missouri to hold forum on new free speech policy recommendations, ABC17News, August 30, 2016
2. Kelsey Kendall, Flag etiquette is overridden by the First Amendment, The Collegian, August 30, 2016
3. Kevin Baker, Liberals Criticize Bill That Would Make First Amendment Subservient to Planned Parenthood Privacy , Breitbart, August 30, 2016
4. Paul Sherman, Does Alabama’s lobbying policy violate the First Amendment?, AL.com, August 29, 2016
5. Beneath Louis Vuitton’s Distaste for Jokes, a Serious First Amendment Question, The Fashion Law, August 29, 2016
6. Jennifer Kabbany, Man Praying at Clemson U. Stopped By Campus Official: ‘Not a Designated Free Speech Area’, Fox News, August 29, 016
7. Randy Evans, Free Speech Incidents In Waterloo, Calhoun County Teachable Moments, Iowa Starting Line, August 29, 2016
8. Robert Coleman, Bye-Bye, Gawker. Seems Sensationalism Isn’t Protected by the 1st Amendment, Newsweek, August 28, 2016
9. Donald Downs, Clinton doesn’t understand First Amendment, Billings Gazette, August 28, 2016
10. M.D. Kittle, All honor to the First Amendment, Washington Times, August 28, 2016

YouTube

• How the Left Is Silencing Free Speech, Kimberley Strassel & Stefan Molyneux, YouTube, August 29, 2016
• Gary Johnson on free speech, Fox News, August 26, 2016
• Wendy Kaminer & John H. McWhorter vs. Jason Stanley & Shaun Harper, Free Speech Is Threatened on Campus, Intelligence2 Debates, posted March 2, 2016

Floyd Abrams on The Open Mind (9-23-09)

• Richard Heffner’s The Open Mind: Unlimited Free Speech When Money Talks? (interview with Floyd Abrams (posted August 26, 2016)

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

Pending Petitions*

1. Armstrong v. Thompson
2. Williams v. Coalition for Secular Government 
3. Wolfson v. Concannon
4. Lee v. Tam
5. Dart v. Backpage.com
6. Pro-Football v. Blackhorse 
7. Packingham v. North Carolina

→ The Court’s next Conference is on September 26, 2016.

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

Last Scheduled FAN, #120: Snapshots of David Cole #2: Chipping Away at Citizens United

Next Scheduled FAN, #121: Wednesday, September 7, 2016

The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)

There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –– Justice Samuel Alito for the Court in Pleasant Grove City v. Summum  (2009)

It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:

Against that backdrop comes the cert. petition in Mech v. School Board of Palm Beach County. The issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.

The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”

→ Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:

1. “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and 
2. “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.

→ Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:

1. “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
2. “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”

→ Shawntoyia Bernard, representing the School Board, counters:

1. “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker“
2.  “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
3. “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”

→ One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?

→ The case was distributed for Conference of September 26, 2016.

CJ Roberts  temporarily blocks subpoena over sex ads

This from Sam Hanane writing in the Associated Press: Yesterday Chief Justice John Roberts “temporarily blocked a congressional subpoena that seeks information on how the classified advertising website Backpage.com screens ads for possible sex trafficking.”

Chief Justice John Roberts

“The order came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.”

“A federal appeals court ruled 2-1 on Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate Permanent Subcommittee on Investigations by Friday. . . .”

→ See aslo John Bresnahan, Supreme Court gives Backpage.com temporary stay in Senate probe, Politico, September 6, 2016

Federal district court strikes down anti-robocall state law 

Late last July Federal District Judge J. Leon Holmes was called upon to decide the constitutionality of an Arkansas statute (Ark. Code Ann. 5-63-204) of an anti-robecall law concerning political speech. The case is Gresham v. Rutledge (E.D. Ark, July 27, 2016). The Arkansas law in question provides:

It is unlawful for any person to use a telephone for the purpose of offering any goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods of services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the call number. 

Judge J. Leon Holmes

Plaintiff Victor Gresham is a political consultant involved with the management of Conquest Communications, which “engages in political communications, including communications through automated telephone calls, on behalf of clients. Gresham previously has performed such services for political candidates in Arkansas and plans to do so in the future. Gresham seeks to conduct automated telephone calls in the state, including surveys, messages concerning voting, express advocacy calls, and a variety of other calls made in connection with political campaigns. To engage in these activities, the plaintiffs use an automated dialing system and pre-recorded messages.”

“Having reviewed the briefs, heard arguments, and examined the evidence submitted,” Judge Holmes declared, “the Court holds that the statute at issue is a content-based regulation that does not survive strict scrutiny.”

Judge Holmes did stress, however, that “the plaintiffs have submitted to the Court a list of statutes, codes, and regulations that other states and the District of Columbia have implemented to regulate robocalls. Mechanisms used to temper the negative effects of robocalling include time-of-day restrictions, disconnection requirements, and prohibitions on calls to emergency lines. None of these restrictions and requirements impose a categorical ban on robocalls made in connection with political campaigns.”

Free Speech on Campus

1. Alex Jones, DePaul launches free speech lecture series after banning conservatives, Prison Planet, September 7, 2016
2. Jeremy Cappello Lee, Beyond free speech?, The Observer, September 7, 2016
3. Tom Borelli, Purdue University Gives Students “Free Speech Training,” Liberty Alliance, September 6, 2016
4. Thomas D. Williams, University of Colorado Bans Free Inquiry of Students Questioning Global Warming, Breitbart, September 6, 2016

Forthcoming Conference on Campus Speech

This November 17th and 18th, PEN America and the National Constitution Center in Philadelphia will host a program entitled Campus Speech: Alive and Well or Under Siege?

The two-day event will event  will bring together a diverse group of stakeholders for moderated discussions on the increasingly contested interplay between free speech and issues of race, gender, politics and social justice on American campuses.  The symposium will build upon the findings of a forthcoming PEN America report that examines recent campus speech controversies in-depth, with the aim of shedding light on how best to advance inclusion and equality while guaranteeing intellectual and academic freedom.

The symposium is intended to bridge divide between leading student activists and thinkers, scholars and advocates of free speech. It will give participants in these controversies an opportunity not only to take stock of differing views, but also to begin exploring common ground.

Approximately 35 carefully selected student activists, legal scholars, free speech advocates, cultural critics, university administrators and professors will take part in the convening, beginning on Thursday afternoon November 17 at 4 PM and concluding on Friday November 8 at 5 PM.

Upcoming Conference on truth & lies . . . & the Constitution 

On April 14, 2017 (8:00 AM – 3:00 PM), the University of Colorado Law School’s Byron White Center for the Study of Constitutional Law will host the 2017 Ira C. Rothgerber Conference, which is titled “Truth, Lies, and the Constitution.” The event will explore a broad range of issues related to law and lies.

Participants include:

• Alan Chen
• Carla Fredericks
• David S. Han
• Justin Marceau 
• Helen Norton
• Nadine Strossen
• James Weinstein
• Christina Wells

→ For more information, contact Professor Helen Norton: helen.norton@colorado.edu

Coming Sept. 9: Lecture on Pornography, Political Expression & Free Speech

This from Chanda Marlowe writing for the UNC Center for Media Law & Policy:

Pornography, Political Expression, and Free Speech: What’s at Stake in the Scholarly Research Today?

“On Friday, Sept. 9 at noon in the Halls of Fame Room in Carroll Hall, the UNC Center for Media Law and Policy will host an interdisciplinary lunch open to faculty and graduate students from across the UNC system.”

Professor Richard Cante

“Richard Cante is Associate Professor of Media and Technology Studies in The Department of Communication at UNC-Chapel Hill. Cante’s research focuses largely on relations between sexuality and the media in the United States since the late 1960s, as well as on how to make sense of these connections–especially in LGBTQ cases.”

“Cante will discuss the rapidly expanding body of research on media pornography across and between scholarly disciplines, helping researchers think through a contemporary interactive mediascape that can make borders between the public and the private seem increasingly and intriguingly opaque. This research has significant implications for human development, public health, law and cultural policy, amongst a variety of other areas. It also has significant implications for how society will more generally grapple, in the future, with media technology’s roles in our lives.”

Call for Papers: “Dark Money and Related Issues”

The University of Arkansas at Little Rock Law Review is seeking papers for its 2017 Symposium, which is titled “Dark Money and Related Issues: New Factors in the Debate on Judicial Appointment versus Election.” The symposium will be held on February 16th and 17th, 2017.

→ The deadline for submissions of article proposals is October 7, 2016. [ht: Steven D. Schwinn]

→ For more information, contact the Symposium Editor, Michael Hemme, at: mghemme@ualr.edu.

The young Garbus

Garbus Looks Back on Lenny Bruce Defense 

Martin Garbus, who with Ephraim London represented the comedian Lenny Bruce in his lengthy New York trial, recently looked back on those days in a Law and Disorder interview.

Among other places, Mr. Garbus wrote about his representation of Bruce in his book Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way (1998).

→ See also Collins & Skover: The Trials of Lenny Bruce: The Fall & Rise of an American Icon. 

Job Opening: FIRE seeks Executive Assistant to President

By Nate O’Connor September 6, 2016

FIRE is seeking an energetic, entrepreneurial individual to join our Washington, D.C., team as the Executive Assistant to the President.

A successful candidate for this position will have strong writing skills and the ability to take charge of a wide range of responsibilities, including spearheading important, specialized projects and presidential initiatives; working with the Vice President of Finance and Development to increase the fundraising capabilities of the department; and maintaining the President’s schedule. Importantly, the Executive Assistant must be able to think creatively and aggressively about ways to make the President more efficient and effective in executing his duties and responsibilities.

This position will be charged with increasing both the President’s and the organization’s messaging reach by arranging networking opportunities and media appearances, as well as working closely with the President’s Research Assistant to proofread and create written content for the FIRE blog and other websites.

This position requires willingness to work collaboratively on a range of writing projects, the ability to meet deadlines on short notice, and strong organizational skills in order to manage multiple projects at a given time.

A successful candidate will also have a good work ethic, be a self-starter, and have the ability to work independently. Most importantly, the candidate must have an eye for detail and strive for perfection when executing job functions.

Other qualifications include:

• knowledge of FIRE’s mission and a willingness to advocate for that mission;
• exceptional verbal and written communication skills;
• an ability to exercise sound judgment;
• organizational, planning, and time management skills;
• superior memory and attention to detail;
• an ability to manage challenging and fast-paced situations;
• strong copy editing skills;
• superior computer and internet proficiency, including the ability to use Microsoft Office and Google applications; and
• a four-year undergraduate degree from an accredited college or university. Graduate certificates or degrees are not required, but will be viewed favorably.

Previous work experience is strongly preferred. Ideally, candidates can commit a minimum of two years to this position.

New & Notable Blog Post

• Eugene Volokh, California bans painting of Civil War battle from County Fair art show, because painting includes Confederate battle flag, The Volokh Conspiracy, September 1, 2016

New & Forthcoming Scholarly Articles

1. Robert Corn-Revere, Hate Speech Laws: Ratifying the Assassin’s Veto, Cato Policy Analysis (2016)
2. Michael Gilbert & Emily Reeder, Aggregate Corruption, Kentucky Law Journal (forthcoming 2016)
3. Daniel P. Tokaji, Voting is Association, Ohio State Public Law Working Paper (2016)

Robert Post: The Disrupter 

→ Gilad Edelman, The Supreme Court’s First Amendment problem, Yale Alumni Magazine, Sept./Oct. 2016

Excerpt: “The Supreme Court, says Robert Post, is having trouble. Just not in the way you might think.”

“He’s not talking about the 4–4 court stalemate, or even the standoff in Congress that caused it. Post ’77JD, the dean of Yale Law School, believes the justices have lost their way on free speech. They’re caught between two conflicting visions. In one, the First Amendment applies in the same way, all the time, regardless of context: speech is speech, period. In the other, speech should be treated differently in different contexts. It’s not just a matter of politics, he says. ‘There’s a genuine uncertainty about how to think about the regulation of speech that afflicts both the right and the left,’ Post told me recently. ‘It’s not a liberal or conservative mess. It’s a conceptual mess.'”

Dean Robert Post

“Recent media coverage of free speech has focused on fights on college campuses, including Yale’s, over racism and political correctness. But in the courts—where our legal rights to free speech are won and lost—that’s not where the action is. The biggest First Amendment issue right now isn’t hate speech or political censorship; it’s speech in the business world.”

“. . . . Like any academic, Post has his intellectual opponents. Martin Redish, a law professor at Northwestern University, has accused him of ignoring the constitutional importance of individual autonomy.”

“[Owen] Fiss, Post’s friend and former mentor, has sparred with him from the opposite direction, arguing that his theory of public discourse gives the government too little power to regulate speech in ways that promote equality. Even those who agree with his approach, like Lessig, note that Post’s work leaves important practical questions unanswered. How, for instance, are judges supposed to decide what counts as public discourse and what doesn’t?”

“Post readily admits that his abstract explorations of constitutional values rarely translate into concrete legal rules. Early in his career, he found the pressure to definitively resolve legal disputes ‘totally paralyzing.’ He decided to write only as much as he felt sure was correct, even if that meant leaving the fine details to be worked out by others.”

“. . . Post doesn’t say so, but he may be playing a longer game. Many of his students go on to clerk for federal judges; some will eventually be the judges. One or two may even make it to the Supreme Court. As a teacher, Post has a chance to shape the way future generations of jurists understand the law.

“‘I’m trying to disrupt the intuitions of students that speech is just speech,’ Post says.”

“‘I’m not going to change a judge’s decision, but I hope to give my students a way to think of these issues in a way that is rational.'”

New Book

• Steve Simpson, editor, Defending Free Speech (2016)

News, Editorials, Op-eds & Blog Posts

• Jim Sleeper, Political Correctness and Its Real Enemies, New York Times, September 3, 2016
• Greg Lukianoff, Jim Sleeper Gets it Wrong in the New York Times, FIRE, September 4, 2016
• Jim Sleeper, The Battle Between Sleeper and Lukianoff/FIRE over Political Correctness and Free Speech, Alternet, September 6, 2016

________________________

(credit: Shawn Patrick Ouellette/Portland Press Herald) (see item 4)

1. Callum Borchers, Lawyer hired by Trump and Ailes to threaten the media once defended it, Washington Post, September 7, 2016
2. Editorial, Trump imperiling 1st Amendment rights, Press Republican, September 7, 2016
3. Steven Simpson, Overturning Citizens United would be a disaster for free speech, The Hill, September 6, 2016
4. Peter McGuire, Scathing LePage mural tests Portland’s stance on free speech, Portland Press Herald, September 6, 2016
5. Lici Beveridge, Judge: Fair trial, free speech both protected, Hattiesburg American, September 6, 2016
6. Russell Hubbard, Are you free to speak? Why the First Amendment probably won’t be much help in the workplace, Omaha World Herald, September 6, 2016
7. Alex Morey, Are Columbia’s Speech Codes’ Days Numbered?, FIRE, September 5, 2016
8. Editorial, Who will stand up for the First Amendment?, Salem News, September 4, 2016
9. Steven D. Schwinn, Ninth Circuit Says No Free Speech for Off-Campus Sexual Harassment, Constitutional Law Prof Blog, September 2, 2016
10. Mirah Riben, Buyer Beware! HOA’s Deny Your First Amendment Rights, Huffington Post, September 1, 2016
11. Thor Benson, Beyond the First Amendment: You’re probably confused about free speech, Salon, August 31, 2016
12. Dustin Waters, Despite First Amendment challenge, federal hearing for Dylann Roof to remain closed, Charleston City Paper, August 31, 2016
13. Nahila Bonfiglio, Hate speech should not be protected under the First Amendment, The Daily Texan, August 30, 2016

YouTube

• Freedom of Speech and Academic Freedom on Campus: Why It Matters and How It’s Being Threatened, UCTV (posted Aug. 30, 2016) (featuring Prof. Eugene Volokh)

Prof. Eugene Volokh

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

Pending Petitions*

1. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
2. NCAA v. O’Bannon
3. Mech v. School Board of Palm Beach County
4. Bondi v. Dana’s Railroad Supply
5. Flytenow v. Federal Aviation Administration
6. Armstrong v. Thompson
7. Williams v. Coalition for Secular Government 
8. Wolfson v. Concannon
9. Lee v. Tam
10. Dart v. Backpage.com
11. Pro-Football v. Blackhorse 
12. Packingham v. North Carolina

→ The Court’s next Conference is on September 26, 2016.

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

Last Scheduled FAN, #121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU

Next Scheduled FAN, #123: Wednesday, September 14, 2016

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

— “[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

–– “First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

— “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

— “In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

→ One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

→ A video of this salon will be posted in an upcoming issue of FAN.

→ The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for Backpage.com”

This from Josh Gerstein writing in Politico: “The Supreme Court has refused to block a Senate panel’s subpoena seeking records from Backpage.com about the prevalence of ads for sexual services, including incidents of minors being sexually trafficked via the site. Chief Justice John Roberts stepped in last week, temporarily halting enforcement of the subpoena from the investigative subcommittee of the Senate Homeland Security and Governmental Affairs Committee while the high court considered the stay application. However, in an order Tuesday, the court denied the stay sought by the online classified-ad website Backpage and its CEO Carl Ferrer. No justice publicly dissented from the court’s action, although Justice Samuel Alito indicated he recused himself from the case. . . .”

MN high court to review law outlawing adult sex-texting to minors

This from Brandon Stahl writing in the Star Tribune: “The Minnesota Supreme Court will take up a case looking at whether a state law banning adults from sexting with minors is unconstitutional.”

“In what became known across some internet forums as the ‘Lunch Lady sexting case,’ Dakota County prosecutors charged Krista Ann Muccio with two felonies in 2014 after she was accused of exchanging nude photos and lewd texts with a 15-year-old boy.

“Muccio, 43, met the boy when he was in 8th grade while she worked at the Inver Grove Heights middle school and high school cafeteria, according to court records. The two began texting in June 2014. That November the boy’s father found nude photos sent by Muccio on his son’s iPad. Police later found texts from Muccio writing that she wanted to have sex with the teen.”

“Muccio sought to dismiss the first count, communication with a minor describing sexual conduct, arguing that one of the laws Dakota County accused her of breaking instead violated the First Amendment’s protection of freedom of speech.”

“Minnesota’s law makes it illegal for anyone to engage “in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct.’

“Muccio’s attorney argued that the law was so broad that it could capture constitutionally protected speech. . . .”

Campus Free Speech 

1. Alex Morely, Professors Standing Up for Freedom of Association at Harvard, FIRE, September 13, 2016
2. Robert Shibley, New Video of Last Year’s Yale Halloween Costume Confrontation Emerges, FIRE, September 13, 2016
3. Zach Greenberg, Berkeley Protesters Attack College Republicans, Campus Police Let It Happen, FIRE, September 13, 2016
4. Rick Ruggles, UNL chancellor’s comments spark free-speech debate, Omaha World-Herald, Sepetember 12, 2016
5. Daniel Jacobson, Freedom of Speech Under Assault on Campus , Cato Institute Policy Analysis (2016)
6. Aleister, Study Confirms Free Speech is Under Assault on College Campuses, Legal Insurrection, September 10, 2016

Coming to Brown University: “Should Free Speech be Limited on College Campuses?”

The Political Theory Project at Brown University invites you to our annual Constitution Day Lecture on Thursday, September 15 at 5 pm in Smith-Buonanno Hall, Room 106 at Brown University.

This year, our featured speakers Stanley Fish, Floersheimer Distinguished Visiting Professor of Law at Yeshiva University’s Benjamin N. Cardozo School of Law, and Greg Lukianoff, president of the Foundation for Individual Rights in Education will present their opposing viewpoints on the issue of free speech on college campuses.

This event is free and open to the public.

Upcoming Event: Signs and Speech One Year After Reed

Today the State & Local Legal Cenetr will host an event at 1:00 pm (ET) entitled “Signs and Speech One Year After Reed.”

Last summer the Supreme Court declared part of the Town of Gilbert’s sign code unconstitutional ruling  that content-based regulations are subject to strict scrutiny. John M. Baker, Greene Espel, will discuss how local governments have been modifying their sign codes to come into compliance with Reed v. Town of Gilbert, Arizona and how courts have interpreted the Reed decision in and out of the sign context.

The webinar is FREE. Continuing legal education (CLE) credit is not offered.

→ Register here

Bill Maher

Bill Maher to receive PEN First Amendment Award

Writing in the Los Angeles Times, Carolyn Kellogg reports that “[t]alk show host Bill Maher will be presented with PEN center USA’s First Amendment Award at the organization’s 26th Literary Awards this month. The award has previously been given to journalists Chris Hedges, Robert Scheer and Charles Bowden; Glenn Greenwald and documentarian Laura Poitras; Hugh Hefner; and former CIA officer  John Kiriakou, who went to prison after leaking information about interrogation practices. . . .”

Forthcoming Book

• Milton Cantor, The First Amendment under Fire: America’s Radicals, Congress, and the Courts  (Transaction Publishers, January 31, 2017)

New & Forthcoming Scholarly Articles

1. Andrew Gilden, Punishing Sexual Fantasy, William & Mary Law Review (forthcoming 2016-17)
2. Timothy McGettigan, Survival of the Fittest Ideas: The Enduring Importance of Free Speech on Campus, SSRN (Sept. 4, 2016)
3. Adam Dunbar, Charis Kubrin & Nicholas Scorch, The Threatening Nature of ‘Rap’ Music, Psychology, Public Policy and Law (2016)
4. Daniel Jacobson, Freedom of Speech Under Assault on Campus , Cato Institute Policy Analysis (2016)

Volokh on proposed Consumer Review Fairness Act

→ Eugene Volokh, Congress to allow special restrictions on speech ‘inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic’?, The Volokh Conspiracy, September 13, 2016

“On Monday the House of Representatives passed the Consumer Review Fairness Act, which would invalidate most form contracts that limit consumer reviews of businesses. If a business purports to require consumers not to criticize the business (see the KlearGear controversy), that contract would be unenforceable, and the Federal Trade Commission and state enforcement agencies would be able to take action against such a business even if it didn’t try to sue for breach of the contract. The Senate passed a similar bill last year. . . .”

“[W]hat struck me about the law is its exemption of certain kinds of contracts (see subsection (b)(3)): The law ‘shall not apply to the extent that a provision of a form contract prohibits . . . submission of,” among other things, material that “contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic’ (emphasis added).”

“So speech on all sorts of viewpoints would be protected by the proposed law, even against private contractual restrictions. A business couldn’t require users to agree to a contract that forbids critical reviews. A fur store couldn’t do the same as to anti-fur reviews; a restaurant couldn’t do the same to reviews that faulted it for serving foie gras. A business whose owner was pro-Donald Trump, and who was afraid that clients would learn this and would then publicly excoriate him for it, couldn’t do the same as to anti-Trump reviews. But contracts barring speech that “is inappropriate” (whatever that is) “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” would remain perfectly legal.”

“That, I think, is a very bad idea, and indeed an unconstitutional idea. Should Congress be free to set up one set of contract law rules for contracts dealing with “unpatriotic speech” and another for contracts dealing with other viewpoints? A special set of contract law rules for contracts dealing with speech that ‘is inappropriate with respect to veteran status,’ differing from rules related to other speech? A special set of contract law rules for contracts dealing with speech that condemned a business’s environmental practices? I don’t think so — and Congress likewise shouldn’t set up rules allowing special restrictions (not applicable to other speech) on “inappropriate” speech “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic.’ . . . .”

News, Editorials, Op-Eds & Blog Posts

1. Noah Feldman, Shady Sex Ads May Have Some First Amendment Protection, Bloomberg View, September 13, 2016
2. Awr Hawkins, Couric Anti-Gun Doc Director: Lawsuit Over Deceptive Edits An Attack on First Amendment, Breitbart, September 13, 2016
3. Mike Bibb, Do school kids have First Amendment rights?, Eastern Arizona Courier, September 13, 2016
4. DOJ To Researchers: First Amendment Does Not Protect Violating Websites’ Terms Of Services, TechDirt, September 12, 2016
5. Michael Cadigan, New rules for public comment has people fearing for their First Amendment Rights, Fox4, September 12, 2016
6. Steven Aftergood, Terrorism and the First Amendment, & More from CRS, Federation of American Scientists, September 12, 2016
7. Lisa Colangelo, Probe says speech in anti-Semitic CUNY incidents is covered by First Amendment, Daily News, September 10, 2016
8. Jonathan Turley, Planned Parenthood Law Criticized As Major Rollback on Free Speech and Press Freedoms, Res Ipsa Loquitur, September 8, 2016
9. Paul Bedard, FEC commissioner warns Dems are gunning for conservative media, Washington Examiner, September 7, 2016
10. Sam Roberts, Richard Neville, 74, a Founder of ’60s Counterculture Magazine Oz, Dies, New York Times, September 6, 2016

YouTube

1. Wake Forest’s John Dinan says 2016 election could sway First Amendment rulings, John Locke Foundation, September 12, 2016
2. Julian Assange, Obama & Hillary Clinton disregard first amendment, September 8, 2016

This Day in First Amendment History (from Today in Civil Liberties History)

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

Pending Petitions*

1. Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession
2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
3. NCAA v. O’Bannon
4. Mech v. School Board of Palm Beach County
5. Bondi v. Dana’s Railroad Supply
6. Flytenow v. Federal Aviation Administration
7. Armstrong v. Thompson
8. Williams v. Coalition for Secular Government 
9. Wolfson v. Concannon
10. Lee v. Tam
11. Dart v. Backpage.com
12. Pro-Football v. Blackhorse 
13. Packingham v. North Carolina

→ The Court’s next Conference is on September 26, 2016.

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

Last Scheduled FAN, #122: Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

Next Scheduled FAN, #124: Wednesday, September 21, 2016

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs?‘ Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

→ The Plaintiff is being represented by Stacey Godfrey Evans.

→ See video clip, courtesy of LawNewz, here.

→ Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

→ Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley”

“The Anti-Defamation League is placing a representative in Silicon Valley to work on cyber hate and harassment issues,” writes Rosie Gray for BuzzFeed news.

“The move comes after significant trolling, particularly on Twitter, of Jewish journalists and other public figures, amounting to a wave of anti-Semitic expression not seen in the American conversation for decades — and as tech companies struggle to reckon with their role in regulating abusive speech.”

“‘As a leading civil rights advocacy organization, ADL was early to recognize the burgeoning issue of cyberhate and how extremists were exploiting online platforms to spread antisemitism and target Jews as well as other minorities,’ said Brittan Heller, who will become the group’s first Director of Technology and Society, in a statement. ‘From its first report on these cyberhate more than 30 years ago to this year’s work tracking the harassment of journalists on social media, ADL has demonstrated its commitment to ensuring our online communities are a safe and just place for all.’ . . .”

Free Speech on College Campuses 

1. Stephen Beale, Brown examines relationship of free speech to academic mission, New Boston Post, September 21, 2016
2. Tyler Laferriere, Faculty free speech under siege, Evergreen, Sept. 20, 2016
3. Graham Ambrose, At the country’s most elite — and liberal — colleges, some Trump supporters stay quiet, Washington Post, Sep. 20, 2016
4. Free speech boards taken down at UW-Eau Claire, WEAU13News, Sept. 19, 2016
5. Cliff Sims, College Democrats leader calls for UA to ‘disinvite’ controversial gay conservative speaker, YellowHammer, Sept. 19, 2016
6. Catherine Rampell, The newest excuse for shutting down campus speech: ‘Security’, Washington Post, September 19, 2016
7. Ryne Myers, Safe spaces disrupt the First Amendment, The Volante, September 19, 2016
8. G.R. O’Brian, The Right Needs To Get Past Demanding Free Speech On Campus, The Federalist, September 19, 2016
9. Tom Ciccota, CNN’s Sally Kohn: I’m Happy Free Speech Is Under Assault on Campuses, Breitbart News, Sept. 19, 2016
10. April Kelly-Woessner, The fierce debate over free speech on American college campuses, Lancaster Online, September 18, 2016
11. Adam Steinbaugh, In New York, Independent Investigation Upholds Pro-Palestine Groups’ First Amendment Rights, Yet Threats Persist, FIRE, September 16, 2016
12. Amanda Christy Brown & Katherine Schulten, Trigger Warnings, Safe Spaces and Microaggressions: Discussing Questions of Freedom of Speech on Campus, New York Times, September 14, 2016
13. The White Knights of the First Amendment, Ms., Sept. 14, 2016

Coming: Geof Stone’s big book on sex  & the Constitution 

On March 21, 2017 the Liveright imprint (Norton) will release Professor Geoffrey Stone’s latest book titled Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (704 pp., 50 photos). A good dollop of it concerns free-speech struggles.

Abstract: Renowned constitutional scholar Geoffrey R. Stone traces the evolution of legal and moral codes that have attempted to legislate sexual behavior from the ancient world to America’s earliest days to today’s fractious political climate. Stone crafts a remarkable, even thrilling narrative in which he shows how agitators, moralists, legislators, and especially the justices of the Supreme Court have historically navigated issues as explosive and divisive as abortion, homosexuality, pornography, and contraception. Overturning a raft of contemporary shibboleths, Stone reveals that at the time the Constitution was adopted there were no laws against obscenity and no laws against abortion before the midpoint of pregnancy. A pageant of historical characters―including Voltaire, Thomas Jefferson, Anthony Comstock, Margaret Sanger, J. Edgar Hoover, Phyllis Schlafly, and Justice Anthony Kennedy―enlivens this landmark work, which dramatically reveals how our laws about sex, religion, and morality reflect the paradoxes and cultural schisms that have cleaved our nation from its founding.

Professor Geoffrey Stone

“A superb examination of the history of how the law has regulated sexual behavior and sexual expression from the ancient world to today. Geoffrey Stone’s clear and engaging writing, as well as his thorough coverage, will make this book the definitive work on sex, religion, and the Constitution. This is a brilliant book that offers a balanced and nuanced treatment of controversial topics such as obscenity, abortion, and same sex marriage.”—Erwin Chemerinsky

“Few, if any, legal scholars possess the capacious intellect and encyclopedic command of constitutional law and American history to make us see in an entirely new light what is perhaps society’s most commonly discussed subject.  In devoting his unique talents to Sex and the Constitution, Geoffrey Stone has created a volume of lasting significance that quickly will become essential reading not only for law students and scholars but for all who want to better understand sweeping cultural transformations that continue to roil society.  Professor Stone provides layer upon layer of historical, jurisprudential, and social context to explain how we have arrived at this point, all of it impeccably researched, in what is an astonishing tour de force.” —Lee Bollinger

Jameel Jaffer

Jameel Jaffer on free speech in an era of new technologies 

“The First Amendment precedents that were decided in the 1960s and ’70s—we haven’t yet figured out how they apply or whether they have continuing relevance to the kinds of questions that are arising today,” Jameel Jaffer told reporters from the Columbia Daily Spectator. “New technology has . . . given rise to a whole set of new challenges to freedoms of speech and the freedom of the press, and I hope that the [Knight First Amendment Institute] will tackle those challenges.”

“I’m hoping that we will use . . . Columbia’s convening power to bring together communities that are sometimes wary of each other—technologists, former intelligence officials, civil libertarians, journalists—in the hope that bringing those communities together will spark new insights and maybe even give rise to solutions that nobody had considered before,” Jaffer said.

Online First Amendment library to be launched soon

On November 14th the Foundation for Individual Rights in Education (FIRE) will hold a press conference in Washington, D.C. to announce a new project—the creation of an online First Amendment library, which will be free to all users. The first phase of the library will launch on the 14th, replete with thousands of links to cases, historical materials, secondary sources, and audio files. I am honored to serve as the library’s editor-in-chief. Among many other features, the online library will include :

Forthcoming Books

1. Nicole Moore, editor, Censorship and the Limits of the Literary: A Global View (Bloomsbury Academic, February 23, 2017)
2. Mickey Huff & Andy Lee Roth, editors, Censored 2017 (Seven Stories Press, April 4, 2017)
3. Michael Donnelly, Freedom of Speech and the Function of Rhetoric in the United States (Lexington Books, December 15, 2016)
4. Robert L. Shibley, Twisting Title IX (Encounter Books, Sept. 27, 2016)
5.  Pekka Hallberg & Janne Virkkunen, Freedom of Speech and Information in Global Perspective (Palsgrave Macmillan, March 9, 2017)
6. Billy Hallowell, Fault Line: How a Seismic Shift in Culture Is Threatening Free Speech and Shaping the Next Generation (Frontline, March 7, 2017)
7. Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, January 12, 2017)

→ Floyd Abrams, The Soul of the First Amendment: Why Freedom of Speech Matters  (Yale University Press, April 25, 2017)

Abstract: The right of Americans to voice their beliefs without government approval or oversight is protected under what may well be the most honored and least understood addendum to the US Constitution—the First Amendment. Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England. In this lively, powerful, and provocative work, the author addresses legal issues from the adoption of the Bill of Rights through recent cases such as Citizens United. He also examines the repeated conflicts between claims of free speech and those of national security occasioned by the publication of classified material such as was contained in the Pentagon Papers and was made public by WikiLeaks and Edward Snowden.

Forthcoming Scholarly Articles

1. Andrew Tutt, Commoditized Speech, ‘Bargain Fairness,’ and the First Amendment, Brigham Young University Law Review (2016-17)
2. Richard Loren Jolly, Think of the Children: Using IIED to Reformulate Disturbing Speech Restrictions, University of Michigan Journal of Law Reform (2016)
3. Yolanda King, The Right-of-Publicity Challenges for Tattoo Copyrights, Nevada Law Journal (2016)

Video: First Amendment Salon # 10

Stephen Solomon, Nadine Strosen, Floyd Abrams & Akhil Amar

On September 9th the Floyd Abrams Institute for Freedom of Expression at Yale Law School co-hosted the tenth First Amendment Salon. The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

→ The video is now available and can be found here.

→ The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

News, Editorials, Op-Eds, & Blog Posts

1. Tim Berners-Lee & Daniel Weitzner, Ted Cruz is wrong about how free speech is censored on the Internet, Washington Post, Sept. 20, 2016
2. Fayetteville teacher suspended for flag lesson on 1st amendment, WRAL.com, Sept. 20, 2016
3. Laurel Raymond, Trump blames bombings on ‘freedom of the press’, ThinkProgress, September 19, 2016
4. Terry Pell, School discipline fight shows why mandatory union fees violate the First Amendment, Washington Examiner, September 19, 2016
5. David Harsanyi, Hillary Clinton Would Rather Blame Free Speech Than Islam For Terrorism, The Federalist, Sept. 19, 2016
6. Scott Shackford, Which Major Party Presidential Candidate Blamed Free Speech for Terrorism Today?, Reason.com, Sept. 19, 2016
7. Jay Parini, Cultural appropriation: Testing the limits of free speech, CNN, Sept. 18, 2016
8. Sandra Canosa, 41.2% Of Americans Believe The First Amendment Protects Them From Being Fired For Social Media Recklessness, The Compliance & Ethics Blog, September 2016
9. Don Hinkle, First Amendment rights are under attack, Washington Times, September 19, 2016
10. Ari Rabin-Havt, What Would The First Amendment Look Like Under President Trump?, Right Wing Watch, September 19, 2016
11. Alex Brinkhorst, Constitution Day to teach students about the First Amendment, Kentucky Kernel, September 18, 2016
12. Jordan Freiman, Police union president thinks the First Amendment doesn’t apply to NFL players, Death&Taxes, September 18, 2016
13. Jay Caruso, Donald Trump Continues His Crusade Against The First Amendment, The Red State, September 17, 2016
14. Annika Hammerschlag, First Amendment lawyers: Lely can’t force students to stand during national anthem, Naples Daily News, September 15, 2016
15. David French, Free Speech Is Killing Free Speech, National Review, Sept. 15, 2016
16. Stephanie Francis Ward, Avvo has First Amendment right to publish lawyer listings, Chicago federal court rules, ABA Journal, September 14, 2016
17. John Stossel, Why don’t presidential candidates understand First Amendment?, The Spectrum, September 7, 2016

Anthony Comstock (1884-1915)

This Day in First Amendment History (Today in Civil Liberties History)

1915 — Anthony Comstock Dies; Censorship Lives On

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

Pending Petitions*

1. Augsburg Confession
2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
3. NCAA v. O’Bannon
4. Mech v. School Board of Palm Beach County
5. Bondi v. Dana’s Railroad Supply
6. Flytenow v. Federal Aviation Administration
7. Armstrong v. Thompson
8. Williams v. Coalition for Secular Government 
9. Wolfson v. Concannon
10. Lee v. Tam
11. Dart v. Backpage.com
12. Pro-Football v. Blackhorse 
13. Packingham v. North Carolina

First Amendment Related Cases

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

→ The Court’s next Conference is on September 26, 2016.

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

Last Scheduled FAN, #123: When you think of free speech, think of “45” — New book by Stephen Solomon explains why

Next Scheduled FAN, #125: Wednesday, September 28, 2016

It comes out this March: The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, 320 pp.). The author is Carlos A. Ball, the Distinguished Professor of Law and Judge Frederick Lacey Scholar at the Rutgers (Newark) Law School.

Professor Ball is a prolific writer; his books include: Same-Sex Marriage and Children: A Tale of History, Social Science, and Law (2014); The Right to be Parents: LGBT Families and the Transformation of Parenthood (2012); From the Closet to the Courtroom: Five LGBT Rights Cases That Have Changed Our Nation (2010); and The Morality of Gay Rights: An Exploration in Political Philosophy (2003) and he is a co-editor of Cases and Materials on Sexual Orientation and the Law (2014).

Professor Carlos Ball

In late March of next year, Professor Ball will turn his attention to the intersection of First Amendment freedom and LGBT equality. Here is the abstract of his forthcoming book:

“Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.”

“Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.”

“Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.”

Headline: “Pharmacy Argues There’s A First Amendment Right To Secretly Sell Execution Drugs”

Writing in BuzzFeed, Chris McDaniel reports that a “pharmacy whose drugs have been used in 16 Missouri executions is arguing that its actions are political speech protected by the First Amendment to the Constitution, and that its identity should remain secret.Death row inmates in Mississippi subpoenaed information from the Missouri Department of Corrections — including about the drugs and supplier — months ago. Missouri Attorney General Chris Koster has attempted to have the subpoena quashed, but so far has been unsuccessful. . . .”

Picture of Texas’ supply of pentobarbital. (via court filing)

“In the past two weeks, the supplier has spoken up for the first time, under the pseudonym ‘M7.’ In a motion filed late Friday night, M7 said its drug sales are political speech. . . .”

“Missouri has paid M7 more than $125,000, all in cash, for execution drugs, according to documents obtained by BuzzFeed News. The amount they are paid per execution — $7,178.88 for two vials of pentobarbital — is well above market value, and experts have expressed concern that the cash deals could violate federal tax law.”

“‘The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights,’ the pharmacy’s attorneys wrote in Friday’s court filing.”

“Selling execution drugs ‘is an expression of political views, no different than signing a referendum petition or selling a t-shirt.'”

Headline: “Court rules 3D printing not protected under First Amendment”

Greg Camp, writing in Guns.com, notes that the “Fifth Circuit Court of Appeals has ruled that designs of firearms to be used on 3D printers are not protected by the free speech provisions of the First Amendment.  The court, siding with the State Department, found that such designs could constitute an export, given the lack of borders on the Internet, and as such would pose a danger to national security.”

→ Defense Distributed v. United States Department of State (5th Cir., Sept. 20, 2016) (District Court opinion, August 4, 2015 — here)

College Campuses & Free Speech

1. Brinley Lowe, First Amendment Day panel addresses use of trigger warnings, Daily Tarhell, Sept. 28, 2016
2. Alex Morey, Milo Yiannopoulos Tour Highlights Dangers of Security Fee Censorship, FIRE, Sept. 27, 2016
3. Aaron Cebone, Brockport ensures free speech on campus, The Stylus, Sept. 27, 2016
4. Rick Ruggles, Free-speech experts discuss safe spaces, trigger warnings during Creighton University forum, World Herald, Sept. 27, 2016
5. Robert Shibley, U. of Tennessee Ends Glenn Reynolds Investigation, Cites First Amendment, FIRE, Sept. 27, 2016
6. Brian Bensimon, Speech code overrules U.S. Constitution, Arkansas Tech tells libertarian students. The College Fix, Sept. 27, 2016
7. Safe Spaces and Free Speech on Campus, American University, College of Arts & Sceinecs, Sept. 26, 2016
8. Joseph Zeballos-Roig, Free speech at FSU shown with Milo Yiannopoulus visit, Black Lives Matter protest, FSU News, Sept. 25, 2016
9. David Palumbo-Liu, New attack on free speech: Pro-Israel groups wage war on campus freedom, Salon, Sept. 24, 2016

Floyd Abrams delivers annual Soles lecture

Floyd Abrams (credit: Sarah Gibson)

“Hate speech is protected under the First Amendment. According to Floyd Abrams, an accomplished First Amendment attorney, the United States is one of the only countries where this is true,” writes Sarah Gibson in The Review.   

“Abrams delivered the 6th annual James R. Soles lecture at the university on Thursday. In his speech, he recounted not only the history of the First Amendment, but legal cases in which the First Amendment was challenged or used as a defense.”

“Abrams’s speech on the history of the First Amendment and the Bill of Rights was intentional given the platform — the James R. Soles lecture is typically held as close to Sept. 17 as possible, to commemorate the signing of the U.S. Constitution in 1787. . . .”

“‘The ultimate First Amendment value is the avoidance of government censorship over speech,” Abrams said. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs.'”

Banned Books Week: September 25-October 1, 2016

Banned Books Week is an annual event celebrating the freedom to read. Typically held during the last week of September, it highlights the value of free and open access to information. Banned Books Week brings together the entire book community; librarians, booksellers, publishers, journalists, teachers, and readers of all types, in shared support of the freedom to seek and to express ideas, even those some consider unorthodox or unpopular.

By focusing on efforts across the country to remove or restrict access to books, Banned Books Week draws national attention to the harms of censorship. Check out the frequently challenged books section to explore the issues and controversies around book challenges and book banning. The books featured during Banned Books Week have all been targeted with removal or restrictions in libraries and schools. While books have been and continue to be banned, part of the Banned Books Week celebration is the fact that, in a majority of cases, the books have remained available. This happens only thanks to the efforts of librarians, teachers, students, and community members who stand up and speak out for the freedom to read.

For more information on getting involved with Banned Books Week: Celebrating the Freedom to Read, please see Ideas and Resources. You can also contact the ALA Office for Intellectual Freedom at 1-800-545-2433, ext. 4226, or bbw@ala.org.

• Bill Keller, A Victory for Press Freedom in 1735 Set an Important Precedent, New York Times Book Review (Sept. 14, 2016) (reviewing Richard Kluger, The Trials of John Peter Zenger and the Birth of America’s Free Press).

Bill Keller

“Many of the questions at the heart of the matter are the same ones that have been asked since before there was a First Amendment: Are opinions protected no matter how obnoxious? Are public figures fairer game than private citizens? Is it a crime to publish material that undermines the authority of government? Is a statement libel if it’s true? . . . .”

“In an epilogue, Kluger flashes forward to the case of Edward Snowden, the intelligence insider who exposed the government’s invasion of our phones and emails, to demonstrate that “free expression remains nearly as imperiled” today as in the 18th century. Whatever you think of Snowden, that’s a stretch. No journalist has been indicted — or silenced — for publishing Snowden’s secrets. A more immediate menace to a robust press is the insatiable appetite of Google and Facebook, sucking away what’s left of the advertising revenues that support aggressive reporting. But that’s another book.”

• Professor David Luban

  David Luban, Say What You Will?, New York Review of Books (Sept. 29, 2016) (reviewing Timothy Garton Ash, Free Speech: Ten Principles for a Connected World, 2016). 

“What principles should govern a connected world where speech is at once imperiled and too easy to use to do harm? That is the question Garton Ash sets out to answer in Free Speech, an informative and bracing defense of free speech liberalism in the Internet age. He reviews the philosophical underpinnings of free speech, analyzes the threats to free speech in today’s environment, and proposes principles we should embrace to foster free speech in the face of novel threats.”

“The book is part of an ambitious project inaugurated by Garton Ash and his Oxford colleagues: an international, multilingual forum to discuss free speech controversies.” 

New & Forthcoming Scholarly Articles

1. John C. P. Goldberg & Benjamin Zipirsky, The Supreme Court’s Stealth Return to the Common Law of Torts, Fordham Law Legal Studies Research Paper (Sept. 26, 2016)
2. Ashutosh Avinash Bhagwat, Free Speech and ‘a Law of Rules’, First Amendment Law Review (forthcoming, 2016)
3. Richard Lorren Jolly, Think of the Children: Using IIED to Reformulate Disturbing Speech Restrictions, University of Michigan Journal of Law & Reform (2016)
4. Robert A. Kahn,  Three First Amendment Puzzles Raised by the Police Union Response to Speech Criticizing Police Conduct in Ferguson and New York City, Alabama Civil Rights & Civil Liberties Law Review (forthcoming 2017)
5. Helen N. Norton, Government Speech and Political Courage, Stanford Law Review Online (2015)

New & Notable Blogs

1. Ruthann Robson, Ninth Circuit: Green Party’s First Amendment Challenge to Arizona’s 180-day Party Recognition Deadline, Constitutional Law Prof Blog, Sept. 25, 2016
2. Erica Goldberg, First Amendment Lessons From France’s Burkini Ban Debacle, In a Crowded Theater, Sept. 22, 2016

News, Editorials, Op-eds & Blog Posts

→ Kit O’Connell, Debate Protesters Forced To Walk Miles To ‘Free Speech Zone’ Across A Highway From Clinton & Trump, Mint Press News, Sept. 27, 2016

1. M.D. Kittle, State ‘disclosure’ ballot measures could chill First Amendment rights, Watchdog.org, Sept. 27, 2016
2. Underage dancers say strip club prohibition denies their First Amendment rights, Associated Press, Sept. 27, 2016
3. Lamaur Stancil, Dozens protest at Trump rally’s First Amendment Zone, Florida Today, Sept. 27, 2016
4. Court: Obscenity-laden letters protected by First Amendment, Associated Press, Sept. 27, 2016
5. Brian Wesolowski, Tech Talk: Cybersecurity & Elections and the First Amendment & Social Media, CDT, Sept. 27, 2016
6. Stela Sappington, Free speech, comedy on today’s college campus, The California Aggie, Sept. 26, 2016
7. Oliver Herzfeld, Athletes In Video Games: Balancing Publicity Rights And The First Amendment, Forbes, Sept. 22, 2016

YouTube

1. The First Amendment | Banned Books Week #1 (Sept. 26, 2016)
2. Constitution Day – What is Free Speech? The First Amendment and the University, Oregon State University (Sept. 26, 2016) (participants: Christopher McKnight Nichols, Andrew Valls, Susie Brubaker-Cole, Rebecca Gose, & Joseph Orozco).
3. CA Supreme Court Agrees to Review Appeals Court’s Bludgeoning of Section 230 and First Amendment, Tech Dirt, Sept. 26, 2016

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

Cert. Granted

1.  Expressions Hair Design v. Schneiderman

Pending Petitions*

1. Augsburg Confession
2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
3. NCAA v. O’Bannon
4. Mech v. School Board of Palm Beach County
5. Bondi v. Dana’s Railroad Supply
6. Flytenow v. Federal Aviation Administration
7. Armstrong v. Thompson
8. Williams v. Coalition for Secular Government 
9. Wolfson v. Concannon
10. Lee v. Tam
11. Dart v. Backpage.com
12. Pro-Football v. Blackhorse 
13. Packingham v. North Carolina

First Amendment Religious Expression Cases

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
• Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

→ The Court’s last  Conference was on September 26, 2016. The Court’s October sitting will begin on October 3rd. The Court’s next Conference is on October 7th.

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

Last Scheduled FAN, #124: Ellen DeGeneres raises First Amendment defense in defamation case

Next Scheduled FAN, #126: Wednesday, October 5, 2016

→ “[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

→ “Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

→ Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. . . .”

“(3) Other persons. It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

• New York Tax Secrecy Provisions (see also here)
• New Jersey Tax Secrecy Provisions
• Connecticut Tax Secrecy Provisions

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

• “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
• “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
• “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
• “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

• Joe Patrice, Donald Trump’s Amazing Cease & Desist Letter, Above the Law, Sept. 23, 2015
• Y. Peter Kang, ‘Stalker’ CEO To Face $300M Suit From Ex-Intern’s Attys, Law 360, Jul. 15, 2015
• Trump v. O’Brien (N.J. Super. Ct, Oct. 24, 2008) (unpublished opinion)
• “Kasowitz Commences Defamation Lawsuit on Behalf of Trump Against Author & Warner Books,” Jan. 2006
• Trump Sues Author and Publisher for Defamation, Business Wire, Jan. 24, 2006

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-Revere: The assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane Bambauer: Donald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-Revere: The assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt Neuborne: There is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin Redish: If the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey Stone: This is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

* * *

The authors of the New York Times story were:

• David Barstow
• Susanne Craig
• Russ Buettner, and
• Megan Twohey

This issue of First Amendment News reproduces the text of a speech (The Aims of Education Address) Professor Geoffrey Stone delivered at the University of Chicago on September 22nd. The Aims Address is given each year by a member of the University of Chicago faculty to welcome the entering college class. It is delivered in the University’s Rockefeller Chapel. (A video of Professor Stone’s address can be found here.) 

Given the controversy over campus speech codes and the University of Chicago’s open letter to its students, I thought the following remarks would help inform reasoned discussion of the issue of free speech on college campuses. I have added subheadings, hyperlinks, bullets, and photographs to Professor Stone’s text.     

Professor Stone is is the Edward H. Levi Distinguished Service Professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) and Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, W.W. Norton, Mar 21, 2017). 

 ________________________

Welcome to what you will come to know as The University and to the beginning of what I hope and trust will be one of the great adventures of your life. Whenever I think of students arriving here for the first time, I can’t help but recall an incident involving Justice Oliver Wendell Holmes.

Professor Stone delivering the Aims Address

At the time of this incident, Holmes was a very old man, nearing 90 years of age, in the autumn of his very long and very distinguished career as a Justice on the Suprme Court of the United States. On this particular occasion, Holmes was on a train headed north from Washington. He was deeply engrossed in reading a legal brief when the conductor knocked on the door to his compartment. Recognizing Holmes, the conductor respectfully asked for his ticket. Holmes looked in his coat pocket — no ticket. He looked in his vest pocket — no ticket. He reached into his trouser pocket — no ticket. Growing ever more frantic, Holmes began rummaging desperately through his briefcase — still no ticket.

At this point, the conductor, trying to calm Holmes, said “Never mind, Mr. Justice. It’s really not a problem. When you find the ticket, just mail it in to the company.” To which Holmes exploded: “You dolt! I don’t give a damn about your ticket, I just want to know where the hell I’m supposed to be going!”

In your first days on this campus, you will likely feel a bit like Justice Holmes — you will want to know where the hell you’re supposed to be going. My task this evening is to offer at least some sense of direction.

[A True Story about Rebels, circa 1918]

I should like to begin by telling you a bit about my world. It is the world of the law. More specifically, it is the world of constitutional law. Law is about stories. It is about real people involved in real disputes with real consequences. So, I shall tell you a story.

This story begins during World War I. As you may or may not know, World War I was not a particularly popular war with the American people, whose sympathies were divided. Many Americans vigorously opposed the Wilson administration’s decision to intervene in the conflict that was then raging in Europe, arguing that our intervention was both unwise and immoral.

Not surprisingly, such opposition did not sit well with the government. In 1917 Attorney General Thomas Gregory, attacking the loyalty of war opponents, declared: “May God have mercy on them, for they can expect none from . . . an avenging government.”

Gregory wasn’t kidding about the “avenging” government. In 1918, Congress enacted the Sedition Act, which made it a crime for any person to utter “any disloyal, . . . scurrilous, or abusive language intended to cause contempt . . . for the . . . government of the United States, the Constitution, or the flag.” True to the Attorney General’s threat, federal authorities launched more than 2,000 prosecutions against individuals who wrote or spoke against the war or the draft.

The defendants in Abrams v. United States

One such prosecution involved five young, Russian-Jewish emigrants who were roughly your age at the time. In the summer of 1918, the United States sent a contingent of marines to Vladivostok in Russia. Concerned that this was the first step of an American effort to crush the Russian Revolution, these five self-proclaimed socialists threw several thousand copies of each of two leaflets — one in English, the other in Yiddish — from several rooftops on the lower east side of New York City.

The leaflets, which were boldly signed “The Rebels,” were addressed to other Russian emigrants. After stating that the Rebels hated “German militarism,” they warned those who worked in ammunition factories that they were “producing bullets, bayonets and cannon to murder not only the Germans, but also your dearest, your best, who are in Russia and are fighting for their freedom.”

The “Rebels” were immediately arrested by the military police. After a controversial trial, they were convicted of violating the Sedition Act of 1918. The trial judge, disgusted by their behavior and their beliefs, sentenced the Rebels to terms ranging up to twenty years in prison.

The Rebels appealed their convictions to the Supreme Court of the United States, claiming that their convictions violated the First Amendment, which guarantees that “Congress shall make no law . . . abridging the freedom of speech.” In Abrams v. United States, the Supreme Court, in a seven-to-two decision, rejected this claim and upheld the convictions. For the majority of the Court, this was an easy case. Because the natural tendency of the defendants’ speech was to generate opposition to the war, it was not within “the freedom of speech” protected by the Constitution.

Justice Holmes

Justice Oliver Wendell Holmes, the same Justice Holmes who some years later was to lose his railway ticket, dissented. Holmes’s dissenting opinion in Abrams is worth reading, for it remains one of the most eloquent statements ever written by a Justice of the Supreme Court about the freedom of expression.

Holmes wrote: “Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises . . . and want a certain result with all your heart you naturally [want to] sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Holmes therefore concluded that “we should be eternally vigilant against attempts to check the expression” even of “opinions that we loathe and believe to be fraught with death, unless they so imminently threaten” compelling government interests that an immediate check is necessary to save the nation.

Professor Harry Kalven (1914-1974)

I first read this passage, written almost a century ago, when I was a law student at this University, almost half-a-century ago. It has engaged my energy and curiosity ever since. Indeed, I think it’s fair to say that it was my puzzling over this passage under the probing tutelage of my law school professor Harry Kalven that, for better or worse, put me on the path to my career and, indeed, to where I stand before you this evening.

[The Aims of Education]

But now I must change direction, for this is not to be a discourse on the First Amendment. It is, rather, to be a talk about the aims of education. Happily, these are not unrelated subjects. To the contrary, the longer I have puzzled over the meaning of free expression, and the longer I have thought about education, the more the two seem to me to converge. Indeed, neither really is worth all that much without the other. And, with that in mind, I would like to turn to what I see as the intersection of free expression and education, and to the subject of academic freedom, for it is at this intersection that we will find the most fundamental values of the world you are about to enter.

I hope to accomplish three things in this part of my talk:

• First, I will trace briefly for you the history of academic freedom, for it is only by understanding where we have been that we can appreciate — in both senses of the word — where we are today.

• Second, I will talk a bit about this University and about the special role it has played in the struggle to establish and to preserve academic freedom.

• And third, I will offer some thoughts about what all this means for you and about the responsibilities that we today bear in common.

It is important to understand that, like the freedom of speech, academic freedom is not a law of nature. It does not exist of its own force. It is always vulnerable, and should never be taken for granted. Indeed, until well into the 19^th century, real freedom of thought was neither practiced nor professed in American universities.

To the contrary, any real freedom of inquiry or expression in American colleges in this era was smothered by the dominance of religion and by the prevailing theory of “doctrinal moralism,” which assumed that the worth of an idea must be judged by what the institution’s leaders declared its moral value to be. Thus, through the first half of the nineteenth century American colleges squelched any notion of free and open discussion or intellectual curiosity. Any student or faculty member who dared argue, for example, that women were equal to men, that blacks were equal to whites, or that homosexuality was not immoral would surely be expelled or fired without hesitation.

Similarly, through the first half of the nineteenth century, as the nation moved towards Civil War, any professor or student in the North who openly defended slavery, or any professor or student in the South who openly challenged slavery, could readily be dismissed, disciplined, or expelled. When a professor at the University of North Carolina expressed sympathy for the 1856 Republican presidential candidate, the students burned him in effigy and he was dismissed by the trustees. When a professor at Franklin College in Pennsylvania admitted he was not an abolitionist, he was promptly fired.

Several decades later, a furious battle arose over Charles Darwin’s theory of evolution, with traditionalists charging not only that Darwin was wrong, but also that his beliefs were dangerous, immoral, and ungodly. As a consequence of the furious battle in the academy over evolution, new academic goals came to be embraced.

President William Rainey Harper (1856 – 1906)

For the first time, to criticize, as well as to preserve, traditional moral values and understandings became an accepted function of higher education, and by 1892 William Rainey Harper, the first president of the University of Chicago, could boldly assert: “When for any reason the administration of a university attempts to dislodge a professor or punish a student because of his political or religious sentiments “at that moment the institution has ceased to be a university.”

But despite such noble sentiments, the battle for academic freedom has been a continuing and fiercely contentious one. In the closing years of the 19th century, for example, businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. But that support was not without strings, and during this era professors who offended wealthy donors by criticizing their business practices were dismissed from such leading universities as Cornell and Stanford.

Then, during the World War I, patriotic zealots persecuted and, as we have seen, even prosecuted those who questioned the wisdom or morality of the war. In the face of such outrage, universities collapsed almost completely in their defense of academic freedom. Students and professors were systematically expelled and fired at colleges and universities across the nation merely for encouraging a spirit of indifference toward the war.

Similar issues arose again, with a vengeance, during the Cold War in the age of Joseph McCarthy. In the late 1940s and 1950s, most universities excluded those even suspected of Communist sympathies from university life. Yale President Charles Seymour, for example, went so far as to boast that “there will be no witch hunts at Yale, because there will be no witches. We will neither admit nor hire anyone with Communist sympathies.”

As this history demonstrates, the freedom to question, the freedom to challenge, the freedom to inquire is not to be taken for granted. Academic freedom is, in fact, a hard-bought acquisition in an endless struggle to preserve the right of each individual, student and faculty alike, to seek wisdom, knowledge, and truth, free of the censor’s sword.

[The Univ. of Chicago & Academic Freedom]

But what does all of this have to do with you and with the University of Chicago? Well, from its very founding, the University of Chicago has been at the forefront of the struggle to define and to preserve academic freedom.

At the turn of the twentieth century, when universities across the land faced bitter conflicts between their trustees and their professors, President William Rainey Harper emphasized that: “Whatever may or may not have happened in other universities, in the University of Chicago neither the Trustees, nor the President, nor anyone in official position [may call] an instructor to account for any public utterances. “A donor,” Harper added, “has the privilege of ceasing to make his gift . . . but . . . he has no right to interfere with . . . the instruction of the university.”

President Robert Maynard Hutchins (1899 – 1977)

Then, in the 1930s, a student organization invited Communist leader William Z. Foster to campus to discuss his perspectives on American society. This invitation triggered furious demands that the University should withdraw the invitation and punish the students for their audacity. In the face of those demands, University of Chicago President Robert Maynard Hutchins fearlessly backed our students, insisting that, at this institution, “students . . . have the freedom to discuss any problem that presents itself.” Echoing Justice Holmes in Abrams, Hutchins declared that the only proper response even to ideas that we hate “lies through open discussion” and debate, rather “than through inhibition.”

Fifteen years later, our University confronted another direct threat to its academic integrity. It was the age of Joseph McCarthy, and in the spring of 1949 the infamous “Broyles Bills” were introduced in the Illinois legislature. These bills prohibited any person who was “directly or indirectly affiliated with any communist . . . organization” to hold any governmental position in the State of Illinois.

A group of 106 intrepid University of Chicago students traveled to the state capital to oppose this legislation. The Illinois legislators were furious. One proclaimed that he would not send his “pet dog to the University of Chicago” and another asserted that “the students looked so dirty and greasy on the outside that they couldn’t possibly be clean American on the inside.”

In the wake of these protests, Senator [Paul W.] Broyles launched a formal investigation of the University of Chicago to determine whether the University harbored professors who were indoctrinating students with subversive and “un-American” beliefs. President Robert Maynard Hutchins was the first witness to testify before the Broyles Committee. Listen to what Hutchins had to say:

“[Our] students . . . were entirely right to disapprove of [the] pending legislation. . . . It is now fashionable to call anybody with whom we disagree a Communist. . . . One who thinks that there are too many slums and too much lynching in America can be called a [Communist], for the Russians say the same. . .

“[As] is well known,” Hutchins added, “there is a Communist Club among the students of the University. [Its] members . . . are interested in studying Communism, and some of them, perhaps all of them, may be sympathetic towards Communism. . . .

“[The] policy of the University [of Chicago] is to permit students to band together for any lawful purpose in terms of their common interests. . . . The University [asserts] that the policy of education is better than the policy of repression. . . .”

At the conclusion of the hearings, a petition bearing the names of 3,000 courageous University of Chicago students was submitted to the investigative committee. The petition read:

“As students of the University of Chicago, we believe that the position of our University, which encourages and maintains the free examination of all ideas, is the strongest possible safeguard against indoctrination. . . . Because we believe that the policy of academic freedom for both students and teachers is the best preparation for effective citizenship in the American tradition, we are confident that the people in the State and nation will join with us to encourage the freedom of the University of Chicago and to support it against attack.”

I say these students were “courageous” because, in the perilous days in which they lived, they were taking a serious risk in putting their names on so “subversive” a statement. In the era of the blacklist, they were placing their careers and their futures on the line. They made our University proud, and they make us proud to this day.

What Hutchins and our students stood up for was the central principle of free expression and free inquiry, a principle that invites bold challenge, controversy, and argument, a principle that, as Dean John Boyer has written, was “one of the foundational ideals on which this University was established.” It is, indeed, at the very core of who we are.

Two decades after the Broyles incident, in the 1960s, the University of Chicago, like other universities, found itself buffeted by the storms of the Vietnam War. The University appointed a Committee, chaired appropriately by Harry Kalven, the professor who taught me about the freedom of expression, to advise the University about its appropriate role in this conflict.

The Kalven Report boldly declared: “A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. . . . To perform [this] mission, a university must sustain an extraordinary environment of freedom of inquiry, [and must] embrace, be hospitable to, and encourage the widest diversity of views.”

[Sustaining an Environment of Free Inquiry]

How, though, do we sustain such an environment of free inquiry?

• First, like the students of 1949, we must defend academic freedom when it comes under attack. Like every liberty that is precious to us, the preservation of academic freedom demands vigilance, determination and, sometimes, courage.

• Second, we must struggle to define the meaning of academic freedom in our time. As we saw in Abrams, the Constitution’s guarantee of freedom of speech is not self-defining. Neither is academic freedom. Each generation must give life to this concept in the face of the distinctive conflicts that arise over time.

Today, the principal challenge to academic freedom comes not from outside the academy, but from within it — from students themselves, some of whom demand censorship of ideas that they find distasteful, and from faculty members and college and university administrators who, afraid to offend their own students, too often surrender academic freedom to charges of offense.

To give just a few examples, several colleges and universities, including Brown, Johns Hopkins, and Williams, have recently withdrawn speaker invitations because of student objections to the views of the invited speakers.

Northwestern University recently subjected a professor to a sustained sexual harassment investigation for publishing an essay in the Chronicle of Higher Education that criticized Northwestern’s sexual harassment investigations.

Colorado College suspended a student for making a joke that mocked feminism, William & Mary disciplined students for criticizing its affirmative action program, and the University of Kansas disciplined a professor for condemning the National Rifle Association.

At Wesleyan University, after the school newspaper published a student op-ed criticizing the Black Lives Matter movement, other students demanded that the University defund the school paper, at Amherst, students demanded that the administration remove posters stating that “All Lives Matter,” at Emory University, students demanded that the university punish other students who had chalked “Trump in 2016” on the university’s sidewalks because, in their words, a university is “supposed to be a safe place and this made us feel unsafe, at DePaul University students shouted down a speaker whose views they opposed, causing the event to be cancelled, and a tenured professor at LSU was fired after students complained that she used profanity in class.

To put all this in perspective, a recent survey revealed that 72% of college students today support disciplinary action against any student or faculty member who expresses views that they deem to be “racist, sexist, homophobic or otherwise offensive.”

[Shift in Attitudes Toward Free Speech]

So, where did all this come from? It was not too long ago when students were demanding the right to free speech. Now, at least some students demand the right to be free from speech that they find to be offensive, upsetting, or emotionally disturbing. What explains this profound shift in attitude?

One often-expressed theory is that at least some members of this generation of students have been raised by so-called helicopter parents who protected and celebrated them in every way, shielding them at every turn from the risks of failure, frustration, and defeat. On this theory, these students, unlike their predecessors, have never learned to deal effectively with challenge, uncertainty, insult, or fear. They therefore demand the right to be protected from speech that they find to be offensive, hurtful, or demeaning.

Another possible explanation of the current situation is that this generation of students is more attuned than their predecessors to the injustices of society, to the harmful impact of hateful expression, and to the inequalities that poison our nation. On this view of the matter, students today are not timid, but bold. They seek not shelter, but justice.

Still another possible explanation is that some students, particularly those who come from disadvantaged, marginalized, and discriminated against backgrounds, have always felt unwelcome on college campuses, but in the past they simply remained silent. On this view of the matter, this generation of college students, particularly those who themselves feel unwelcome and alienated, deserves credit, because instead of remaining silent in the face of oppression, they have the courage to demand equality and respect.

My own view, for what it’s worth, is that there is an element of truth in all of these perspectives. The question is what to do about all this.

[Report of the Committee on Freedom of Expression]

Faced with the ongoing challenge to academic freedom at American universities, in 2014 University of Chicago President Robert Zimmer charged a faculty committee with the task of drafting a formal statement for the University on Freedom of Expression. The goal of that committee, which I chaired, was to stake out our University’s position on these issues. The committee consisted of seven distinguished faculty members from across the University. After broad consultation, we produced a brief, three-page Report.

At the risk of being self-indulgent, I want to read you some excerpts from that Report:

Because the University [of Chicago] is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn.

In a word, the University’s fundamental commitment is to the principle that robust debate and deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.

It is for the individual members of the community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression.

Although members of the University are free to criticize and contest the views expressed on campus, and although they are free to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.

To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

As University of Chicago President William Rainey Harper observed 125 years ago, without a vibrant commitment to free and open inquiry, a university ceases to be a university.

Interestingly, when we wrote this Report, we were thinking only about the University of Chicago. To our surprise, the Report has had a national and even international impact. Not only has it been lauded by editorials in such journals as the New York Times, the Washington Post, and the Wall Street Journal, but it has now been adopted by a range of other colleges and universities, including such diverse institutions as Princeton, Columbia, the University of Minnesota, the University of Missouri, Purdue, Johns Hopkins, American University, and the University of Wisconsin.

[The Case for “Offensive, Obnoxious & Wrong-headed” Speech]

Now that I’ve finished congratulating myself, let me elaborate a bit. Why should a university take the position that faculty and students should be free to advance any and all ideas, however offensive, obnoxious, and wrong-headed they might be?

• First, one thing we have learned from bitter experience is that even the ideas we hold to be most certain might in fact turn out to be wrong. As confident as we might be in our own wisdom, experience teaches that certainty is different from truth. If those who believed with absolute certainty that the earth was the center of the universe were wrong, if those who believed with absolute certainty in creationism were wrong, if those who believed that slavery was natural, right, and proper were wrong, if those who believed that a woman’s place is in the home were wrong, then why should we have the arrogance to think that we are unquestionably right about our own beliefs today? The only wise approach, as Justice Holmes made clear, is to acknowledge the risk that our certainties might be wrong as well, and that they too must always be open to challenge and question.

• Second, experience teaches that the suppression of speech breeds the suppression of speech. If today I am permitted to silence those whose views I find distasteful, I have then opened the door to allow others down the road to silence me. The neutral principle of no suppression of ideas protects us all. This is especially important in the current situation, for in the long run it is likely to be minorities, whether religious minorities, racial minorities, or political minorities, who are most likely to be silenced once censorship is deemed acceptable. Censorship is never a one-way street, and this is a door we do not want to open.

• Third, a central precept of free expression is the concern with chilling effect. That problem is especially acute today because of the effects of social media. It used to be the case that students and faculty members were willing to take controversial positions, in part because the risks were relatively modest. One could say something provocative or outrageous, and the statement soon disappeared from view. But in a world of social media, where every comment you make can be circulated to the world and can be called up later by prospective employers or graduate schools or neighbors with the mere click of a button, the potential cost of speaking courageously – of taking controversial positions, of taking risks – is greater than ever before in history. Indeed, according to a recent survey, 65% of all college students now say that it is “unsafe” for them to express unpopular views, and this clearly has had an effect on faculty as well. In this setting, it is especially important for universities to stand up for free expression.

[How to Proceed?]

So, how should this work in practice? Should students be allowed to express whatever views they want – however offensive they might be to others? Yes. Absolutely.

Should those who disagree and are offended by the views and speech of others be allowed to condemn those views and speakers in the most vehement terms? Yes. Absolutely.

Should students, faculty, and community members who oppose a speaker be permitted to disrupt an event in order to prevent that individual from speaking? Absolutely not.

Should those who are offended and who disagree be allowed to demand that the university punish those who have offended them? Yes. Absolutely.

Should the university punish those whose speech annoys, offends, and insults others? Absolutely not.

Should students, faculty members and community members who oppose a speaker disrupt an event in order to prevent that individual from speaking? Absolutely not. Although non-disruptive protests are both permitted and encouraged, disruption of the rights of others to speak and to listen is wholly incompatible with the central principle of academic freedom.

Does this mean that the University may never restrict speech? No, as our committee noted in the University Statement on Free Expression, the University may restrict expression that

• violates the law,
• that falsely defames a specific individual,
• that constitutes a genuine threat or harassment,
• that unjustifiably invades substantial privacy or confidentiality interests, or
• that is otherwise directly incompatible with the core functioning of the University.

But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

What, though, should a university do?

• First, a university should educate its students and faculty about the importance of civility and mutual respect. As a member of the Class of ’67 recently wrote to me, a university “has an obligation to create a community of people as well as ‘a community of ideas,’ a place where everyone feels certain that they are unambiguously welcomed.” This is, indeed, a core institutional value, and it is one to which the University of Chicago is deeply committed. But it is a value that should be reinforced and reaffirmed by education and by example, not by censorship.

• Second, a university should encourage free, open, and robust disagreement, argument, and debate. It should instill in its students and faculty the importance of winning the day by facts, by ideas, and by persuasion, rather than by force, disruption, or censorship. Indeed, for a university to fulfill its most fundamental mission, for a university to be a university, it must be a safe space for even the most loathsome, offensive, and disloyal arguments. As a former member of the Law School faculty, who just happens now to be President of the United States, observed in a recent commencement address: No matter “how much you might disagree” with a speaker, don’t try “to shut them down. . . . Let them talk, but “have the confidence to challenge them.” “If the other side has a point, learn from them. If they’re wrong, rebut them. . . . Beat them on the battlefield of ideas. And you might as well start practicing now, because one thing I can guarantee you — you will have to deal with ignorance, hatred, racism” and stupidity “at every stage of your life.”

• Third, a university must recognize that, our society being flawed as it is, the costs of free speech will often fall most heavily on those groups and individuals who feel the most marginalized, unwelcome, and disrespected. All of us feel that way sometimes, but in our often unjust society the individuals who most often bear the brunt of free speech – or at least of certain types of free speech – tend to be racial and ethnic minorities; religious minorities; women; gays, lesbians and transsexuals; immigrants; ideological dissidents; and the like. Universities must be sensitive to this reality. Even if they cannot “solve” this problem by censorship, they can and should take other steps to address the special challenges faced by groups and individuals who are most often made to feel unwelcome and unvalued by others.

Universities must take this challenge seriously. They should encourage civility and mutual respect. They should support students who feel vulnerable, marginalized, silenced, and demeaned. They should help those students learn how to speak up, how to respond effectively, how to challenge those whose attitudes, whose words, and whose beliefs offend, appall, and outrage them. This is a core responsibility of universities, for the world is not a safe space, and it is our job to enable our graduates to win the battles they will need to fight in the years and decades to come. This is not a challenge that universities can or should ignore.

Dean Jay Ellison

As you no doubt are aware, the letter you received last month from Dean of Students Jay Ellison generated a good deal of attention about trigger warnings and safe spaces, so let me say a word about those issues. A trigger warning is an oral or written statement by a professor alerting students that material in a course might be upsetting to some students because of their backgrounds or their personal experiences. Examples might be material that includes graphic depictions of rape, of lynchings, or of the Holocaust. The idea is that students who might be especially distraught by such material can then prepare themselves to deal with it effectively or, if necessary, avoid it altogether.

Like almost all colleges and universities, the University of Chicago neither requires nor forbids faculty members to issue such warnings. Such judgments are within the core of academic freedom, and professors who feel that certain material in a course might pose a serious problem for particular students are absolutely free to alert those students in advance. Thus, despite all the fuss in the media, the University in fact has no policy prohibiting or even discouraging such warnings.

On the safe space question, the problem is one of definition, because the precise meaning of this phrase is ambiguous. What is clear, as I noted earlier, is that the University of Chicago does not itself aspire to be a safe space that shields members of our community from challenging, difficult, and sometimes unnerving issues and arguments. At the same time, though, the University fully and unequivocally supports and indeed encourages students to participate in groups and organizations that are designed to enable students with similar backgrounds, interests, and experiences to work together to discuss their shared experiences and frustrations, to test and develop their ideas, to sponsor events, and to present proposals for reform to University officials.

Indeed, the University has a broad array of such student organizations including the Asian Student Union, the Campus Crusade for Christ, the Jewish Students Association, the Latino Students Association, the Muslim Students Association, the National Organization for Women, the Native American Students Association, the Organization of Black Students, the Pro-Life Association, Queers and Associates, the South Asian Students Association, and Students for Justice in Palestine, to name just a few. These organizations are a central part of who we are, and they represent a critical part of our culture that the University enthusiastically endorses, supports, and cherishes. They are meant to be empowering, intellectually robust and, when necessary, safe.

Let me now, though, return to my central theme. Half a century ago, President Robert Maynard Hutchins asked what is it “that makes the University of Chicago a great educational institution?” The answer he gave then remains true today: “It is,” he said, “the intense, strenuous and constant intellectual activity of the place. . . . Presented with many points of view, [students are] compelled to think for [themselves]. We like to think that the air is electric, and that from it the students derive an intellectual stimulation that lasts the rest of [their] lives. This,” Hutchins concluded, “is education.”

This is the tradition that you inherit. Your responsibility as a student at this University is to test what you are taught at every turn, to challenge your teachers, your classmates and yourselves, to choose your own values and your own beliefs. To meet this responsibility, you will have to be independent, you will have to be daring, you will have to take risks.

It is not easy to tell your professor, who has devoted years, perhaps decades, to mastering her subject, that you disagree with her latest observation or theory. But we urge you to see the discourse of this University as an incitement to risk and to boldness. If you find yourself hesitating, if your feel timid, if you wonder if it’s worth it, think of the Rebels in Abrams. At an age not much older than you, they dared to take on the government of the United States. You certainly can take on a mere professor.

The faculty of this University ask nothing of you that they do not also ask of themselves. Even the most distinguished teacher and scholar routinely suffers frustration and failure. It is only by taking risks, by daring to ask questions no one else has ever asked, that real contributions are achieved. Thus, if your professors ask you to take risks, know that they take risks as well. As a faculty report declared twenty years ago, “at the University of Chicago, the only appropriate response to even the most withering question is not resentment, but gratitude.”

[The Challenge]

Fulfilling the responsibility of academic freedom means more than challenging your classmates and your teachers; it also means challenging yourself. It means being willing to reconsider what you yourself have come to accept as true.

Mollie Steimer (1897 – 1980)

In 1921, after two years in prison, Mollie Steimer, one of the Abrams Rebels, was deported to the Soviet Union. It was not what she expected. Disappointed in the political and economic system she found there, Steimer again agitated against the government. Again, she was arrested, prosecuted and convicted of sedition. In 1923, she was deported from the Soviet Union. I don’t know for sure, but I rather suspect that this was an unparalleled achievement — to be convicted of sedition and deported within five years from both the United States and the Soviet Union. Whatever else one might think of her, Mollie Steimer was not afraid to reconsider her positions.

In 1919, a majority of the Supreme Court in Abrams rejected the bold approach of Justice Holmes and opted for a “safe” view of the First Amendment. Fifty years later, the Supreme Court unanimously overruled the majority opinion in Abrams and, embracing Justice’s Holmes’s dissenting opinion, held that the government may not punish even speech that we “loathe and believe to be fraught with death” unless that speech is both intended and likely to incite imminent lawless action. To reach this result, the Court had to challenge the first principles of its predecessors and to overturn half a century of precedent.

A great University, like a successful Court, must dedicate itself to the rigorous, open-minded, unyielding search for truth. You will learn here to ask the hard questions. But it is not enough to examine the premises, beliefs and assumptions of an earlier time and find them wanting. It is too easy to dismiss those who thought that the earth was the center of the universe, that its resources were boundless, that only men should vote, that marriage is only for people of the opposite sex, or that separate could ever be equal.

You must remember that you, too, hold beliefs that your children or your children’s children will rightly regard as naive, foolish, perhaps even obscene. You must be prepared to challenge your beliefs, to reform your world, just as the Rebels in Abrams struggled to reform theirs. You, too, must challenge the nature of things.

[“Life is an experiment”]

So, to return to the question with which I began, “where the hell are you supposed to be going?” As you’ve no doubt surmised, your adventure has no predetermined path, no assigned destination. Let the journey engage you, for as the humorist Will Rogers observed almost a century ago, “even if you are on the right track, you’ll get run over if you just sit there.”

University of Chicago President Edward Levi once noted that our faculty warmly welcome our students “because students are where the future lies.” It is in this spirit that we welcome you. We hope you will find in these halls the air that President Hutchins said is “electric” and that you will take away from this place a stimulation that will last the rest of your days.

As Justice Holmes mused in Abrams, “all life is an experiment.” May your life’s experiment be filled with curiosity, boldness and courage. Thank you.

The question presented in Armstrong v. Thompson was “whether all (or nearly all) law enforcement offic- ers are “public officials” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).” Today the Court denied cert. in that case.

In his petition to the Court, Roy T. Englert, Jr. argued:

The case is Bennie v. Munn. A cert. petition was filed recently in the Supreme Court with Damien Schiff listed as counsel of record. Before proceeding to the First Amendment issue raised, consider the opening paragraph of the Eighth Circuit’s opinion in the case; Chief Judge William J. Riley wrote for the majority:

Damien Schiff, counsel of record for Petitioner

“Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators after they investigated him and his broker-dealer employer around the time a newspaper reported Bennie made unkind comments about the President of the United States. The district court found that even though the regulators targeted Bennie partly in retaliation for his constitutionally protected political speech, they did not do enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s claim failed. Because we cannot say that finding was clearly wrong, we affirm.”

The Chief Judge ended his opinion by declaring: “We are not of a definite and firm conviction that a mistake was committed by the district court such that the district court clearly erred by finding the state regulators’ actions against Bennie would not have quieted a person of ordinary firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504, we affirm.”

Circuit Judge Jane L. Kelly joined in the majority opinion and Circuit Judge Clarence Beam concurred in party and dissented in part.

→ In his cert. petition on behalf of Robert Bennie, Jr., Mr. Schiff contends that the case raises the following question:

“Robert Bennie, a successful financial advisor, was one of the leaders of the Lincoln, Nebraska, Tea Party. Because Bennie called President Obama “a communist” in a prominent newspaper, state regulators pressured Bennie’s employer to impose heightened supervision, conduct unannounced audits, and levy other sanctions to provide them with ‘some comfort.’

“The Constitution prohibits government officials from retaliating against individuals for protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To prevail on a First Amendment retaliation claim, a plaintiff must show, among other things, that a person of ‘ordinary firmness’ would have declined to speak in light of the government’s adverse action. The courts of appeals have split on whether a trial court’s determination on this issue is subject to clear error or de novo review. The question presented, which the court below viewed as ‘likely [] dispositive,’ is: In light of the First Amendment’s strong speech protections, are “ordinary firmness” decisions reviewed on appeal solely for clear error, as the Third, Sixth, and Eighth Circuits hold, or are they reviewed de novo, as the First, Ninth, Tenth, Eleventh, and D.C. Circuits hold?”

→ Mr. Schiff argued that review should be granted for the following reasons:

I. “The decision below deepens a conflict among the Court of Appeals

           A. Like the Eighth Circuit, the Third Circuit and the Sixth Circuit Review a Trial Court’s “Ordinary Firmness” Determination for Clear Error

           B. In Contrast, the First, Ninth,Tenth, Eleventh, and D.C. Circuits, Review a Trial Court’s ‘Ordinary Firmness’ Finding DeNovo

II.  Certiorari should be granted to bring clarity to an important and reoccurring federal question that is clearly presented in this case.”

→ In a blog post on the Volokh Conspiracy, here is how Professor Eugene Volokh viewed the matter:

Professor Eugene Volokh

“I think that, when it comes to decisions about what would “chill an ordinary person’s speech,” appellate courts should not defer to trial court findings. This sort of question isn’t a pure question of historical fact, as to which such deference is usually proper; rather, it’s a question of application of law to fact, which courts should review de novo, especially when First Amendment issues are at stake. There was some Eighth Circuit precedent suggesting that courts should indeed defer on such questions, which is why I think the Eighth Circuit should have reheard the matter en banc; I quote the amicus brief below.”

“But for now, whether or not Bennie should have won his case, I think that the Nebraska regulators’ actions were quite wrong, as the Eighth Circuit panel pointed out; and I thought they were worth airing.”

Headline: “Federal Court Blocks Louisiana’s Online Age-Verification Law for Violating First Amendment”

According to an ACLU press release, a “federal judge has signed an order permanently preventing Louisiana from enforcing a 2015 state law that required websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.”

“[Chief] Judge Brian A. Jackson had previously granted a preliminary injunction in the case, Garden District Book Shop v. Stewart. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.”

“The plaintiffs in the case are two independent booksellers, Garden District Book Shop, Octavia Books, Future Crawfish Paper (publisher of Anti-Gravity magazine), the American Booksellers Association and Comic Book Legal Defense Fund. The lawsuit was brought by the Media Coalition and the American Civil Liberties Union.“

“The law, enacted as H.B. 153, required that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tried to access the material, would have been a crime subject to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything”

“To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.”

“The federal district court found in its preliminary injunction ruling that ‘[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.’ . . .”

→ Garden District Book Shop v. Caldwell (Oct. 7, 2016, U.S. Dist. Ct., Middle Hist., La.) (order of final decree & judgement)

→ Complaint for Declaratory & Injunctive Relief

→Attorneys for Plaintiffs: Michael A. Bamberger, Richard M. Zuckerman, Esha Bhandari, Lee Rowland, Stephen A. Dixon & Candice C. Sirmon

[ht: Media Coalition]

Headline: “Environmentalists and Corporations Struggle Over Boundaries of Free Speech”

Writing in the Epoch Times, Tara Maclsaac, reports that “Activists and bloggers expressing concerns about the environmental practices of some companies have been hit with multi-million-dollar defamation suits.For example, four residents in Uniontown, Alabama, are being sued for comments they made on Facebook about a local landfill. The company that operates the landfill is claiming $30 million in damages to its business.”

“The highest court in Massachusetts heard arguments in a similar case on Oct. 7. Karen Savage and Cherri Foytlin wrote a blog post in 2013 alleging that scientific consulting company ChemRisk had oil industry ties. They had thus called into question a ChemRisk’s study that declared cleanup workers at the Deepwater Horizon oil spill site were not exposed to harmful airborne chemicals.”

Just think what a massive muzzle we’d all live with if we all thought we’d be sued at any moment if our opinions might be slightly inaccurate online. — Lee Rowland

“In both cases—and hundreds of others popping up around the country every year—the defendants say the lawsuits were just meant to scare them into retracting their statements and discourage others from speaking out. . . .”

“David Green, president of Green Group Holdings, the company that owns the Uniontown landfill in question, [said]: ‘All local residents have the right to oppose us and to exercise their free speech right to protest if they want. What they don’t have is a right to intentionally make false and defamatory statements of fact that damage our reputation and our ability to do business—which is exactly what they have done.’ . . .”

Patent Law & the First Amendment — Judge Mayer’s Concurrence

Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm.

Here are some excerpts from Judge Haldane R. Mayer’s concurrence in Intellectual Ventures v. Symantec (Fed. Cir. 2016):

I agree that all claims on appeal fall outside of 35 U.S.C. § 101. I write separately, however, to make two points:

1. patents constricting the essential channels of online communication run afoul of the First Amendment; and
2. claims directed to software implemented on a generic computer are categorically not eligible for patent.

I. “[T]he Constitution protects the right to receive information and ideas. This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) . . . .

Judge Haldane R. Mayer

Although the claims at issue here disclose no new technology, they have the potential to disrupt, or even derail, large swaths of online communication. U.S. Patent No. 6,460,050 (the “’050 patent”) purports to cover methods of “identifying characteristics of data files,” ‘050 patent, col. 8 l. 13, whereas U.S. Patent No. 6,073,142 (the “’142 patent”) broadly claims systems and methods which allow an organization to control internal email distribution, ‘142 patent, col. 1 ll. 15–34. U.S. Patent No. 5,987,610 (the “’610 patent”) describes, in sweeping terms, screening a communication for viruses or other harmful content at an intermediary location before delivering it to an addressee. See ‘610 patent, col. 14 ll. 34–47. The asserted claims speak in vague, functional language, giving them the elasticity to reach a significant slice of all email traffic. . . . Indeed, the claims of the ‘610 patent could reasonably be read to cover most methods of screening for harmful content while data is being transmitted over a network.. . .

Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. See Golan v. Holder, 132 S. Ct. 873, 889–93 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219–21 (2003). In the copyright context, the law has developed “built-in First Amendment accommodations.” Eldred, 537 U.S. at 219; see also Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 201 (1985) (noting that the Lanham Act contains safeguards to prevent trademark protection from “tak[ing] from the public domain language that is merely descriptive”). Specifically, copyright law “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” Eldred, 537 U.S. at 219; see also Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) (explaining that “copyright’s idea/expression dichotomy” supplies “a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” . . . . It also applies a “fair use” defense, permitting members of “the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” Eldred, 537 U.S. at 219; see 17 U.S.C. § 107 (“[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”).

Just as the idea/expression dichotomy and the fair use defense serve to keep copyright protection from abridging free speech rights, restrictions on subject matter eligibility can be used to keep patent protection within constitutional bounds. Section 101 creates a “patent-free zone” and places within it the indispensable instruments of social, economic, and scientific endeavor. . . . Online communication has become a “basic tool[ ],” Benson, 409 U.S. at 67, of modern life, driving innovation and supplying a widely-used platform for political dialogue. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (noting that the Internet “is a ubiquitous information-transmitting medium”) . . . . Section 101, if properly applied, can preserve the Internet’s open architecture and weed out those patents that chill political expression and impermissibly obstruct the marketplace of ideas. . . .

The public has a “paramount interest in seeing that patent monopolies … are kept within their legitimate scope.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144 (2016) . . . . Nowhere is that interest more compelling than in the context of claims that threaten fundamental First Amendment freedoms. . . . “As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997). A robust application of section 101 at the outset of litigation will ensure that the essential channels of online communication remain “free to all men and reserved exclusively to none,” Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948).

II.  Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents. The claims at issue in Alice were directed to a computer-implemented system for mitigating settlement risk. 134 S. Ct. at 2352–53. Although the petitioners argued that their claims were patent eligible because they were tied to a computer and a computer is a tangible object, the Supreme Court unanimously and emphatically rejected this argument. Id. at 2358–60. The Court explained that the “mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Id. at 2358. Accordingly, “[t]he fact that a computer necessarily exist[s] in the physical, rather than purely conceptual, realm is beside the point” in the section 101 calculus. Id. . . .

Software is a form of language—in essence, a set of instructions. See Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 447 (2007) (explaining that “software” is “the set of instructions, known as code, that directs a computer to perform specified functions or operations” (citations and internal quotation marks omitted)); see also 17 U.S.C. § 101 (defining a “ ‘computer program,’ ” for purposes of the Copyright Act, as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”). It is inherently abstract because it is merely “an idea without physical embodiment,” Microsoft, 550 U.S. at 449 (emphasis added). Given that an “idea” is not patentable, see, e.g., Benson, 409 U.S. at 67, and a generic computer is “beside the point” in the eligibility analysis, Alice, 134 S. Ct. at 2358, all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.

The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain. See Flook, 437 U.S. at 593 n.15 (“[I]n granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed” (citations and internal quotation marks omitted)). Because generic computers are ubiquitous and indispensable, in effect the “basic tool [ ],” Benson, 409 U.S. at 67, of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero. See Alice, 134 S. Ct. at 2358 (“Stating an abstract idea while adding the words ‘apply it with a computer’ simply combines those two steps, with the same deficient result.”).

Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself. See Mackay Radio & Tel. Co. v. Radio Corp., 306 U.S. 86, 94 (1939) (“While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.”). It is well past time to return software to its historical dwelling place in the domain of copyright. See Benson, 409 U.S. at 72 (citing a report from a presidential commission explaining that copyright is available to protect software and that software development had “undergone substantial and satisfactory growth” even without patent protection) . . . .

From an eligibility perspective, software claims suffer from at least four insurmountable problems. First, their scope is generally vastly disproportionate to their technological disclosure. In assessing patent eligibility, “the underlying functional concern . . . is a relative one: how much future innovation is foreclosed relative to the contribution of the inventor.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1303 (2012); see also Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 513 (1917) . . . . Software patents typically do not include any actual code developed by the patentee, but instead describe, in intentionally vague and broad language, a particular goal or objective. . . . Here, for example, the ‘610 patent discusses the objective of “screen[ing] computer data for viruses . . . before communicating the computer data to an end user,” ‘610 patent, col. 1 ll. 59–61, but fails to disclose any specific, inventive guidance for achieving that goal. In effect, the ‘610 patent, like most software patents, describes a desirable destination but neglects to provide any intelligible roadmap for getting there.

A second, and related, problem with software patents is that they provide incentives at the wrong time. Because they are typically obtained at the “idea” stage, before any real inventive work has been done, such patents are incapable of effectively incentivizing meaningful advances in science and technology. “A player focused on patenting can obtain numerous patents without developing any of the technologies to useful levels of deployment or disclosure, leaving a minefield of abstract patent claims for others who actually deploy software.” Seltzer, 78 Brook. L. Rev. at 931. Here, for example, it took no significant inventive effort to recognize that communications should be screened for harmful content before delivery. The hard work came later, when software developers created screening systems capable of preventing our email boxes from being overrun with spam or disabled by viruses. Granting patents on software “ideas”—before they have been actually reduced to practice—has created a perverse incentive scheme. Under our current regime, those who scamper to the PTO early, often equipped with little more than vague notions about using computers to automate well-known business and social practices, can reap hefty financial dividends. By contrast, those who actually create and deploy useful computer-centric products are “rewarded” with mammoth potential infringement liability. . . .

Yet another intractable problem with software patents is their sheer number. See Brief Of Amici Curiae Checkpoint Software, Inc. et al. in Support of Respondents, Alice, 134 S. Ct. 2347 (No. 13-298), 2014 . . . . (“[B]ecause computer products—as opposed to patents—inevitably integrate complex, multicomponent technology, any given product is potentially subject to a large number of patents. . . . Some industry experts have estimated that 250,000 patents go into a modern smartphone.”) Given the vast number of software patents—most of which are replete with broad, functional claims—it is virtually impossible to innovate in any technological field without being ensnared by the patent thicket. . . . .

Fourth, and most fundamentally, generically-implemented software invariably lacks the concrete borders the patent law demands. See, e.g., Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F. Supp. 456, 462 (D. Mass. 1997) (“The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps ‘no there there,’ the ‘there’ is everywhere where there is Internet access.”). Patent protection is all about boundaries. An applicant has the right to obtain a patent only if he can describe, with reasonable clarity, the metes and bounds of his invention. . . . A properly issued patent claim represents a line of demarcation, defining the territory over which the patentee can exercise the right to exclude. . . .

Software, however, is akin to a work of literature or a piece of music, undeniably important, but too unbounded, i.e., too “abstract,” to qualify as a patent-eligible invention. See Microsoft, 550 U.S. at 447–48 (explaining that software “instructions . . . detached from any medium” are analogous to “[t]he notes of Beethoven’s Ninth Symphony”). And, as discussed previously, given that generic computers are both omnipresent and indispensable, they are incapable of providing structure “sufficiently definite to confine the patent monopoly within rather definite bounds,” Benson, 409 U.S. at 69. In short, because directing that software should be applied via standard computer elements is little different than stating that it should be written down using pen and paper, generically-implemented software lacks the concrete contours required by section 101. See Alice, 134 S. Ct. at 2352 (emphasizing that “merely requiring generic computer implementation” does not remove claims from the realm of the abstract).

Declaring that software implemented on a generic computer falls outside of section 101 would provide much-needed clarity and consistency in our approach to patent eligibility. It would end the semantic gymnastics of trying to bootstrap software into the patent system by alleging it offers a “specific method of filtering Internet content,” see BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016), makes the computer faster, see Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337–39 (Fed. Cir. 2016), or the Internet better, see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), just to snuggle up to a casual bit of dictum in Alice, 134 S. Ct. at 2359. Software runs computers and the Internet; improving them up to the current limits of technology is merely more of the same. The claims at issue in BASCOM, Enfish, and DDR, like those found patent ineligible in Alice, do “no more than require a generic computer to perform generic computer functions,” Alice, 134 S. Ct. at 2359. Eliminating generically-implemented software patents would clear the patent thicket, ensuring that patent protection promotes, rather than impedes, “the onward march of science,” O’Reilly v. Morse, 56 U.S. (15 How.) 62, 113 (1853), and allowing technological innovation to proceed apace.

[ht: Professor Dennis Crouch]

Free Speech Week: Oct. 17-23, 2016

→ See here.

College Campuses & Free Speech 

1. Stuart Smith, Students angered by ‘free speech wall’ built in plaza Tuesday, The Collegian, Oct. 11, 2016
2. Sonny Bunch, UVA Jettisons Free Speech Over Fear of Backlash, The Editor’s Blog, Oct. 11, 2016
3. Dave Huber, Alleged ‘racially charged’ messages on U. Denver ‘free speech wall’ provoke student snowflakery, The College Fix, Oct. 10, 2016
4. Sarah McLaughlin, What Campus Leaders Had To Say About Free Speech This Week, FIRE, October 7, 2016
5. Campus Craziness: Free speech used to bar Sheriff Clarke, Fox News, Oct. 7, 2016 (YouTube)
6. Derek Hawkins, University of North Dakota, citing First Amendment, won’t punish students for blackface Snapchat photos, Washington Post, October 7, 2016
7. Wade Rupard, UND finds no code violations in two racially charged photo incidents, Bemidji Pioneer, Oct. 6, 2016
8. Ashe Schow, University president rejects ‘zero tolerance’ policy for speech, Washington Examiner, October 6, 2016
9. Anthony L. Fisher, Janet Napolitano Defends Free Speech on University of California Campus, Reason.com, Oct. 3, 2016
10. Heidi Katter, Buckley event addresses free speech on campus, Yale News, Oct. 3, 2016
11. Timothy McGettigan, Survival of the Fittest Ideas: The Enduring Importance of Free Speech on Campus, SSRN (Sept. 4, 2016)

Jameel Jaffer, “A First Amendment in the Digital Age”— Peter Zenger Lecture

Oct. 4, 2016, the Columbia Journalism School hosted the Peter Zenger Lecture. Here are a few excerpts from Jameel Jaffer‘s lecture:

Jameel Jaffer

“. . . The digital age, our age, will give rise to many novel and vexing questions relating to the scope and substance of First Amendment freedoms.  One reason for this is that the Supreme Court’s seminal cases relating to the freedoms of speech and the press—the cases that shape our public spaces and public discourse today—were decided half a century ago.  They were decided before the advent of the internet, the rise of technology giants like Apple and Microsoft, the invention of the search engine, the arrival on the world stage of transnational transparency activists, the development of end-to-end encryption, and the emergence of social media.  Some of the factual assumptions that underlie seemingly settled First Amendment principles may no longer be sound.  At the very least, over the next decade or two the courts will have to determine whether to apply old precedents to very different contexts.”

“What I’d like to propose here is that questions about surveillance, official secrecy, and individual privacy—the questions that Snowden’s story provokes—will be among the most significant that the First Amendment will have to answer.  What is the government entitled to know about us, and what are we entitled to know about it?   Here in the United States, the post-Snowden debate has taken place against the backdrop of the Fourth Amendment’s protection against unreasonable searches and seizures, but questions relating to surveillance, secrecy, and privacy have long been the province of the First Amendment, too.  The First Amendment has long been understood, for example, to limit the scope of the government’s surveillance power. It’s long been understood to give the public, in certain narrow contexts at least, a right of access to information the government would prefer to withhold.  Whistleblowers have sometimes argued that the First Amendment limits the government’s power to punish them for disclosing official secrets. The First Amendment had something to say about surveillance, secrecy, and privacy before the era of smartphones and social media. I’d like to consider, or at least begin to consider, what the First Amendment might have to say about these topics—and what it should have to say about these topics—now that the digital age has arrived. . . .”

Coming Soon: 2016 Jefferson Symposium: Free Speech on Campus

This from the folks at the Thomas Jefferson Center for the Protection of Free Expression

On October 13–14, 2016 the University of Virginia School of Law will host the third biennial Jefferson Symposium. This year’s symposium, to be held at the Law School, will explore contemporary attitudes surrounding free speech at American colleges and universities.

The assembly of panelists is sure to provide a fascinating and balanced look at one of the most difficult First Amendment issues currently facing our country. Among the speakers appearing at this year’s symposium are university presidents (Teresa Sullivan, University of Virginia, Jeffrey Herbst, Colgate University, Edward Ayers, University of Richmond), First Amendment experts (Geoffrey Stone, Eugene Volokh, and Leslie Kendrick), and humorists (including Kelly Carlin, George Carlin’s daughter), as well as advocates for restraints on hurtful or hostile speech.

Admission is free and the event is open to all members of the public.

If you are an attorney interested in receiving Continuing Legal Education credit for attending the symposium, please call (434) 295-4784 for more information.

→ You can download a complete schedule for the symposium here.

Shiffrin vs. Strassel: Who are the First Amendment’s Friends & Foes? 

→ Steven H. Shiffrin, What’s Wrong with the First Amendment? (Cambridge University Press, 2016)

→ Kimberley Strassel, The Intimidation Game: How the Left is Silencing Free Speech (Twelve, June 27, 2017)

New & Forthcoming Books

1. Bill Hallowell, Fault Line: How a Seismic Shift in Culture is Threatening Free Speech and Shaping the Next Generation (Frontline, March 7, 2017)
2. Michael Donnelly, Freedom of Speech and the Function of Rhetoric in the United States (Lexington Books, Dec. 15, 2016)
3. Samantha Barbas, Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (Stanford Law Books, January 18, 2017)
4.  Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (NYU Press, February 14, 2017)
5. Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, March 9, 2017)
6. Pekka Hallberg & Janne Virkkunen, Freedom of Speech and Information in Global Perspective (Palgrave Macmillan, April 8, 2017)
7. Robert Spencer, The Complete Infidel’s Guide to Free Speech (Regnery Publishing, July 25, 2017)

New & Forthcoming Scholarly Articles

→ Joel Gora, “In the Business of Free Speech: The Robert Court and Citizens United,” in Jonathan A. Adler, Business and the Roberts Court (Oxford University Press, 2016), pp. 227-263.

→ Andrew Tutt, Commoditized Speech, ‘Bargain Fairness,’ and the First Amendment, Brigham Young University Law Review (forthcoming 2016-17)

1. Clay Calvert, The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection?, UCLA Law Review Discourse (2016)
2. Rebecca L. Brown, The Harm Principle and Free Speech, Southern California Law Review (2016)
3. Nicole B. Cásarez, The Synergy of Privacy and Speech, Journal of Constitutional Law (2016)
4. Anthony D. Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, Columbia Law Review (2016) (student note)
5. Allison June Luzwick, Human Trafficking and Pornography: Familiar Bedfellows — Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, SSRN (Sept. 29, 2016)
6. Robert A. Kahn, Three First Amendment Puzzles Raised by the Police Union Response to Speech Criticizing Police Conduct in Ferguson and New York City, Alabama Civil Rights & Civil Liberties Law Review (forthcoming 2017)

Jim Caruso

Podcast

• Good Beer, No Censorship, So to Speak (FIRE) (Nico Perrino interviews Jim Caruso & Erin Weston of Flying Dog Brewery)

News Stories, Editorials, Op-Eds, Letters, & Blog Posts 

→ Floyd Abrams, Ban Hate Speech?, New York Review of Books, Sept. 29, 2016 (response to David Luban’s review of Free Speech: Ten Principles in a Connected World by Timothy Garton)

1. Lisa Peet, Kansas City Libraries Defend Free Speech in Face of Arrests, Resignations, Library Journal, Oct. 11, 2016
2. Editorial, Free speech, even for racists, The Blade, Oct. 11, 2016
3. Kieran Corcoran, Free Speech Groups Warn Against Legal Crackdown on Social Media, HeatStreet, Oct. 11, 2016
4. Barton Hinkle, Does the First Amendment Cover Books, Movies or Netflix?, Reason.com, Oct. 10, 2016
5. Scott Cook, GF City Council to decide if panhandling ordinance goes against First Amendment, WDAZ8/ABC, Oct. 10, 2016
6. Jack Greiner, First Amendment protects ballot selfie, Cincinnati.com, Oct. 7, 2016
7. Dune Lawrence, Will the First Amendment Protect Backpage.com From Pimping Charges?, Bloomberg Business, October 7, 2016
8. Sam Rosenstiel, Six at Six lecture tackles renowned pornography publisher, First Amendment rights, The Northerner, Oct. 6, 2016
9. Maxine Bernstein, Ammon Bundy: Guns allowed Oregon refuge occupiers to express First Amendment rights, The Oregonian, Oct. 6, 2016
10. Tanya Carter, Social media and the first amendment, WTVA (Fox), Oct. 6, 2016

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

Cert. Granted

1.  Expressions Hair Design v. Schneiderman
2. Lee v. Tam

Pending Petitions*

1. Bennie v. Munn
2. Augsburg Confession
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
4. Bondi v. Dana’s Railroad Supply
5. Flytenow v. Federal Aviation Administration
6. Packingham v. North Carolina

Cert. Denied

1. Armstrong v. Thompson
2. Wolfson v. Concannon
3. Dart v. Backpage.com
4. NCAA v. O’Bannon
5. Mech v. School Board of Palm Beach County
6. Williams v. Coalition for Secular Government 
7. Pro-Football v. Blackhorse 

Free Speech Related Cases

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

First Amendment Religious Expression Cases

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
• Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

→  The Court’s next Conference is on October 14, 2016.

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

Last Scheduled FAN, #126: Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times”

Next Scheduled FAN, #128: October 19, 2016

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

* *  * * 

→ Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

→ See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

* * * * 

According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

→ See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply

The Washington Post quoted Mr. Trump as saying: “‘These vicious claims about me of inappropriate conduct with women are totally and absolutely false,’ Trump said at an afternoon rally here.”

→ “Trump spokesman Jason Miller said the ‘entire article is fiction.”

“‘[F]or the New York Times to launch a completely false, coordinated character assassination against Mr. Trump on a topic like this is dangerous,’ Miller said in the statement. ‘To reach back decades in an attempt to smear Mr. Trump trivializes sexual assault, and it sets a new low for where the media is willing to go in its efforts to determine this election.'” (Source: CNN Wire, Oct. 12, 2016)

The Prospect of Discovery?

→ “According to CNN reporters Dylan Byers and Brian Stelter: “If the Trump campaign does proceed with lawsuits in this case, it would be a break from past practice, and it will give both the Times and the Post the opportunity to pursue discovery and request information on Trump’s entire sexual history, because Trump would have the burden of proving falsity and actual malice.”

→ Writing in the Washington Post, Callum Borchers noted: “The lawsuit Donald Trump is threatening against the New York Times over sexual assault allegations in an article published Wednesday night could be risky for the Republican presidential nominee. ‘It would be very appropriate and relevant for the reporters to question Trump on the truth of the allegation under oath, and a court would likely order depositions,’ said John L. Diamond, a media law expert at the University of California. ‘There is no Fifth Amendment protection for civil cases.'”

Demand Letter to the NYT

Demand for Retraction                                                                                                                                    October 12, 2016

Dear Mr. Baquet,

We represent Donald J. Trump. We write in response to the libelous article published October 12, 2016 by The New York Times entitled Two Women Say Donald Trump Touched Them Inappropriately.

Marc Kasowitz

Your article is reckless, defamatory and constitutes libel per se.  It is apparent from, among other things, the timing of the article, that it is nothing more than a politically-motivated effort to defeat Mr. Trump’s candidacy. That is why you apparently performed an entirely inadequate investigation to test the veracity of these false and malicious allegations, including why these two individuals waited, in one case, 11 years, and, in another case, more than three decades, before deciding to come forward with these false and defamatory statements. Clearly, The New York Times is willing to provide a platform to anyone wishing to smear Mr. Trump’s name and reputation prior to the election irrespective of whether the alleged statements have any basis in fact.

We hereby demand that you  immediately cease any further publication of this article, remove it from your website and issue a full and immediate retraction and apology. Failure to do so will leave my client with no option but to pursue all available actions and remedies.

Sincerely,

Marc E. Kasowitz

Headline: “Trump’s many, many threats to sue the press since launching his campaign”

This from Trevor Timm writing in the Columbia Journalism Review (October 3, 2016):

“In the span of a long weekend in mid-September, Trump threatened to sue The New York Times, his staff had a Vice reporter arrested outside a campaign event, and he blamed the New York terrorist bombings on ‘freedom of the press.'”

“This weekend, Trump struck again. After the Times’ huge scoop detailing how he took an almost billion-dollar loss on his 1995 taxes, Trump’s lawyer threatened ‘prompt initiation of appropriate legal action’ against the Times once more. By my count, it is at least the 11th time Trump has threatened to sue a news organization or journalist during his campaign for president.”

“I had intended to quantify how many journalists or news commentators Trump has threatened to sue over his lifetime, but that quickly turned into a fool’s errand. A simple Google search of “Trump threatens to sue” will return an overwhelming number of stories. In the past decade alone, he’s sued a former Times journalist who wrote a book about him that he later admitted he didn’t even read; he’s threatened to sue former View host Rosie O’Donnell for allegations that have been shown over and over again during this campaign to be correct; he’s sued HBO’s Bill Maher over a joke bet that involved proving he was not, in fact, born an orangutan.”

“He threatened to sue a journalist at the Village Voice as far back as 1979, and he actually sued a newspaper as early as 1984: the Chicago Tribune, for calling building plans of his “aesthetically lousy.” My personal favorite was his threat to sue The Onion, the popular satirical news site. . . .”

Additional Sources

→ Timothy L. O’Brien, Don’t fear Trump’s lawsuits. He’ll lose, Chicago Tribune, Oct. 13, 2016 (“Kasowitz is a familiar name to me. He was Trump’s lead attorney when Trump sued me a decade ago for libel when I was still a reporter and editor with the Times. . . . Trump lost his case, and he spent boatloads of money litigating it.”)

→ Nick Penzenstadler, Trump, Bill Maher and Miss Pennsylvania: The ‘I’ll sue you’ effect, USA Today (“Say something bad about Donald Trump and he will frequently threaten to go to court. “I’ll sue you” was a Trump mantra long before “Build a wall.” But an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.”

→ FAN 125.1: 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns (Oct. 2, 2016)

The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .”  –– Catherine J. Ross, Lessons in Censorship (2015) 

Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.

But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.

Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”

Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)

“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”

Ten States Expand Student Press Rights (statutory rights)

1. North Dakota (public colleges & high schools)
2. Colorado 
3. Pennsylvania 
4. Iowa
5. Kansas
6. Arkansas 
7. California
8. Oregon
9. Maryland (public colleges & high schools)
10. Illinois (public colleges & high schools)

“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte

Related 

• Oregon (protection for public college students)
• California (protection private college students)
• New Jersey (pending legislation: public colleges & high schools)

→ Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)

→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)

→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)

Is downloading hacked Clinton e-mails a crime?

The Wall Street Journal’s Jacob Gershman looked into the question in an Oct. 17, 2016 post. One the one hand, he reported that “[a]ccording to CNN’s Chris Cuomo, possessing the stolen John Podesta emails is a crime — unless you’re a member of the media. ‘Remember, it’s illegal to possess these stolen documents,” Mr. Cuomo said on air. “It’s different for the media, so everything you learn about this, you’re learning from us.'”

On the other hand, and as pointed out in Gershman’s blog post, experts disagreed: “‘It’s highly unlikely—I would say unimaginable– that the simple downloading of documents made public by WikiLeaks is criminal,” [said] Floyd Abrams . . . . ‘I don’t know of any case that so holds or statute that requires such a result.'”

“UCLA law professor Eugene Volokh is also highly skeptical of CNN’s assertion. ‘It is illegal for the media or anyone else to possess actually stolen tangible property (e.g., stolen paper letters, stolen paper files, etc.) But possessing illegally made copies (again, when you weren’t involved in the illegal copying) isn’t illegal, and likely can’t be made illegal consistently with the First Amendment.'”

→ See also Jonathan Turley, CNN: It Is Illegal For Voters To Possess Wikileaks Material, Jonathan Turley blog, Oct. 17, 2017 (“While technical arguments could be made that downloading is a form of possession of stolen documents, it is a dubious argument when the material is widely distributed and a matter of public interest. The weight of the existing case law militates heavily against the legal threat described on CNN”)

Headline: “House passes bill making it illegal to sue for bad online reviews”

Writing in The American Genius, Gary Picariello reports that the “U.S. House of Representatives finally passed a bill that will make it illegal for companies to put ‘gag clauses’ in their contracts that block or penalize customers for posting negative online reviews. It’s expected to move through the Senate soon. . . . This bill. . . is a bipartisan piece of legislation that will void any existing non-disparagement clauses in consumer contracts and give the Federal Trade Commission and state attorneys general the authority to take enforcement action against businesses that attempt to use ‘non-disparagement’ clauses to quiet consumers. . . . [S]eeing as how the Senate already passed a version of the same bill last year, all that’s left really is ironing out the small print in order to combine the two versions before pushing forward for the President to sign.”

→ This bill is titled the Consumer Review Fairness Act

[ht: David Horowitz]

PEN America Report: “And Campus for All: Diversity, Inclusion, & Freedom of Spech at U.S. Universities”

As noted by Nennifer Schuessler in the New York Times,, a new report by PEN America, to be released on Monday, questions that story line while warning of a different danger: a growing perception among young people that cries of ‘free speech’ are too often used as a cudgel against them.The report, titled “And Campus for All: Diversity, Inclusion and Freedom of Speech at U.S. Universities,” covers a broad range of hot-button topics, including trigger warnings, microaggressions, safe spaces and controversial campus speakers. While it cites ‘troubling incidents of speech curtailed,”’ it finds no ‘pervasive” crisis.'”

“Safe Space: A tool for allowing deep & consensual dialogue”

Yes, you read it right. You can learn more about safe speech by going to the Berkeley Student Cooperative’s website. Some of the information set out there includes:

1. The “4 Principles of a Safe Space”
2. “Things That Make Us Feel Safe/Unsafe”
3. “Facilitation Games”
4. “Icebreaker/Name Games”
5. “Trust Building”
6. “Conscious Learning Games”

[ht: Joan Bertin]

TJ Center’s “Free Speech on Campus” Symposium Video Posted

On October 13–14, 2016, the University of Virginia School of Law hosted the third biennial Jefferson Symposium. The Thomas Jefferson Center for the Protection of Free Expression event is now available in video format.

Among the speakers appearing at this year’s symposium are university presidents (Teresa Sullivan, University of Virginia, Jeffrey Herbst, Colgate University, Edward Ayers, University of Richmond), First Amendment experts (Geoffrey Stone, Eugene Volokh, and Leslie Kendrick), and humorists (including Kelly Carlin, George Carlin’s daughter), as well as advocates for restraints on hurtful or hostile speech.

Videos are now available of the following four panels:

• Free Speech In and Out of the Classroom
• Free Speech and Equal Dignity
• Free Speech in the Modern University
• Free Speech vs Hostile Environment

Free Speech on College Campuses 

→ Peter Salovey, Yale Believes In Free Speech—and So Do I, Wall Street Journal, Oct. 17, 2016 (Professor Salovey is the President of Yale University)

1. Aleister, Transgender Activists Disrupt Free Speech Rally at U. Toronto, Legal Insurrection, Oct. 18, 2016 (YouTube video here)
2. Lili Carneglia, Keep fighting anti-free speech activism, The Crimson White, Oct. 17, 2016
3. Anthony Gockowski, Trump appeals to millennials, vows to defend free speech on campus, Campus Reform, Oct. 14, 2016
4. Cliff Maloney, Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016
5. Editorial, Free Speech Under Threat on Campuses, The News & Advance, Oct. 13, 2016
6. Hans von Spakovsky, The All-Out Assault on the First Amendment, The Daily Signal, Oct. 12, 2016

FIRE Receives $2.5 Million Grant to Launch SOAR, Announces 9 New Job Openings

This from a FIRE press release: The Foundation for Individual Rights in Education (FIRE) is excited to announce the launch of its new Speech, Outreach, Advocacy, and Research (SOAR) project. Made possible by a $2.5 million grant from the John Templeton Foundation, this ambitious three-year project will provide FIRE with the tools necessary to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.

“FIRE is grateful to the Templeton Foundation for its generous investment in the fight to defeat censorship and preserve academic freedom on campus,” said FIRE President and CEO Greg Lukianoff. “The grant will give FIRE tremendous resources to engage a wider audience and better understand the current attitudes and arguments about campus rights. FIRE has been eager to pursue a project like this since our founding in 1999. The Templeton Foundation has now made it a reality.”

Businessman and philanthropist Sir John Templeton gave his foundation the motto “how little we know, how eager to learn” to exemplify its support for open-minded inquiry and the hope for advancing human progress through breakthrough discoveries. The Templeton Foundation supports research on subjects ranging from complexity, evolution, and infinity to creativity, forgiveness, love, and free will. It encourages civil, informed dialogue among scientists, philosophers, and theologians, and between such experts and the public at large, for the purposes of definitional clarity and new insights.

“We are delighted to support FIRE’s efforts to help promote understanding of America’s unique constitutional and cultural commitments to free and open speech, including uncensored debate on even the most controversial topics,” said Daniel Austin Green, director of individual freedom and free markets at the Templeton Foundation.

With today’s announcement of SOAR, FIRE is also opening the job application process for nine new positions. FIRE is seeking energetic applicants who are entrepreneurial and passionate about its mission to fill the following positions by January 3, 2017:

• Director of Public Outreach
• Polling Analyst
• Psychology Research Fellow
• History Research Fellow
• Archival Fellow
• High School Outreach Fellow
• Alumni and Public Outreach Fellow
• Faculty Outreach Fellow
• Communications Coordinator

“FIRE’s team is composed of some of the most thoughtful, principled, and driven people working to defend and sustain civil rights today,” said FIRE Executive Director Robert Shibley. “With the launch of SOAR, we get to expand our already elite team to explore new issue areas and bolster our ongoing fight to protect campus rights.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

→ Contact: Nico Perrino, Director of Communications, FIRE: 215-717-3473; media@thefire.org

Forthcoming book on Roberts Court & free speech 

• Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (Oxford University Press, April 10, 2017)

Professor Gregory Magarian

Abstract: “This book comprehensively explores and critiques how the current U.S. Supreme Court, under the leadership of Chief Justice John Roberts, has reshaped First Amendment law. It argues that this Court has consistently used First Amendment law to promote a limited view of freedom, while bolstering social and political stability. This book examines every decision about expressive freedom the Supreme Court handed down between Chief Justice Roberts’ ascent in September 2005 and Justice Scalia’s death in February 2016. During Chief Justice Roberts’ tenure, the Court has issued more than forty decisions that interpret the First Amendment’s speech protections. These decisions comprise one of the most important parts of this Court’s record and legacy while inspiring sharply divergent judgments. The author explores many of the key recurring debates in First Amendment law as well as providing much needed attention on the special problems of the government preserve cases and the high stakes of the electoral process cases.”

New & Forthcoming Scholarly Articles

1. Elizabeth Shaver, A Missed Opportunity to Clarify Students’ First Amendment Rights in the Digital Age, Brooklyn Law Review (forthcoming 2017)
2. Nancy Leong, The First Amendment and Fair Housing in the Sharing Economy, Ohio State Law Journal (forthcoming 2016-17)
3. Marc Rohr, First Amendment Fora Revisited: How Many Categories Are There?, SSRN (Oct. 10, 2016)
4. Benjamin Akins, State of Confusion: A Non-Profit’s Right to Withhold Information from State Regulators, SSRN (Oct. 12, 2016)
5. Allison June Luzwick, Human Trafficking and Pornography: Familiar Bedfellows — Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, SSRN (Sept. 29, 2017)
6. Ruben J. Garcia, Politics at Work After Citizens United, Loyola LA Law Review (2016)

New & Notable Blog Posts

1. Ruthann Robson, Ninth Circuit Upholds California’s Disclosure Statute Regulating Crisis Pregnancy Centers, Constitutional Law Prof. Blog, Oct. 14, 2016
2. Erica Goldberg, Policing Clowns on Campus: What Is and Is Not Constitutional (and what is murky), In a Crowded Theater, In a Crowded Theater, Oct. 6, 2016

Podcast

• National Constitutional Center, The First Amendment and the freedom of expression (Erwin Chemerinsky & Bradley Smith)

News, Editorials, Op-eds & Blog Posts

→ John Nichols, North Dakota’s War on the First Amendment Threatens Everyone’s Right to Know, The Nation, Oct. 18, 2016 (“Charges against Amy Goodman were rejected. But warrants and arrests continue to threaten dissenters, observers, journalists–and honest debate”)

→ Shaun Courtney, Can the next president rewrite the First Amendment?, Investigative Reporting Workshop, Oct. 17, 2016 (panelists included:Kenneth Jost, Anita Kumar, Adam Liptak, Katie Townsend, and Chuck Tobin (moderator))

→ Mi-Ai Parrish, How do we respond to threats after our endorsement? This is how, Az. Republic, Oct. 17, 2017

1. Zoe Tillman, In Melania Trump Suit, Journalist Invokes Maryland’s Anti-SLAPP Law, Law.com, Oct. 18, 2016
2. Wen Fa, High Court Is Asked to Defend First Amendment Rights Against Public Sector Retaliation, TownHall, Oct. 18, 2016
3. Georgianne Nienaber, First Amendment and Sioux Nation Under Siege, Huffington Post, Oct. 16, 2016
4. Brain Stelter, Donald Trump has ‘betrayed First Amendment values,’ journalism advocates say, CNN Money, Oct. 13, 2016
5. Kathy Kiely, Trump’s Threat to the First Amendment, Moyers & Co., Oct. 13, 2016
6. Barton Hinkle, Does the First Amendment Cover Books, Movies or Netflix?, Reason.com, Oct. 10, 2016
7. Editorial, Remove muzzle on consumers, App.com, Oct. 2, 2016
8. Lyle Denniston, Court to take a varied look at the First Amendment, Constitution Daily, Sept. 29, 2016

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

Cert. Granted

1.  Expressions Hair Design v. Schneiderman
2. Lee v. Tam

Pending Petitions*

1. Bennie v. Munn
2. Augsburg Confession
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
4. Bondi v. Dana’s Railroad Supply
5. Flytenow v. Federal Aviation Administration
6. Packingham v. North Carolina

Cert. Denied

1. Armstrong v. Thompson
2. Wolfson v. Concannon
3. Dart v. Backpage.com
4. NCAA v. O’Bannon
5. Mech v. School Board of Palm Beach County
6. Williams v. Coalition for Secular Government 
7. Pro-Football v. Blackhorse 

Free Speech Related Cases

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

First Amendment Religious Expression Cases

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
• Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

→  The Court’s next Conference is on October 28, 2016

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

Last Scheduled FAN, #127: Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”

Next Scheduled FAN, #129: October 26, 2016

In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”

Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)

“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York Times, The Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”

Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”

“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]

Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump) 

The threat of litigation by “well-funded plaintiffs” 

Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”

“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”

Countersuits: Suing Trump for Defamation? 

Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016

* * * *

In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.

___________________

Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)

(Credit: Ethan Miller/Getty Images)

October 23, 2016: Donald Trumps threatens to sue sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”

Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”

Pro Bono Offers to Defend Against Defamation Suits

October 14, 2016: “Gibson Dunn partner and media law luminary Ted Boutrous is offering a pro bono defense of news outlets threatened with defamation suits by Donald J. Trump, throwing a BigLaw wrench into the Republican presidential candidate’s efforts to muffle coverage of sexual assault allegations.” [Source here]

→ Laurence Tribe: “Ted and I are in this together, pro bono, along with Ben Wittes and probably quite a few others. If Trump loses, our mission is to protect the women he has abused (and other targets) from being silenced by his threats to sue. If he were to win, we (and many others) will have a broader project on our hands: protecting people from executive abuse.” [October 24, 2016 e-mail to RKLC]

→ FAN 128.1 — Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits, October 25, 2016

→ See also Floyd Abrams, American Bar Association’s decision to stifle report criticizing Donald Trump is an ominous sign for future, New York Daily News, October 25, 2016

___________________

October 13, 2016: At a rally in Florida, Mr. Trump stated that “we are preparing” a suit against the New York Times.

New York Times’s lawyer responds to Trump: In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.’”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

Marc Kasowitz, one of Mr. Trump’s lawyers

October 12, 2016: Mr. Trump’s lawyer alleges that the New York Times libeled his client when the newspaper published an article that featured two women accusing Mr. Trump of touching them inappropriately years ago. “Your article is reckless, defamatory and constitutes libel per se,” Marc E. Kasowitz wrote. “It is apparent from, among other things, the timing of the article, that it is nothing more than a politically motivated effort to defeat Mr. Trump’s candidacy.”

→ Mr. Kasowitz demands that the New York Times retract its allegations against Mr. Trump.

October 1, 2016: Mr. Kasowitz, one of Mr. Trump’s lawyers, threatened “prompt initiation of appropriate legal action” against the New York Times for printing parts of his 1995 tax returns from New York, New Jersey and Connecticut.

September 1, 2016: Melania Trump sues Daily Mail for $150 million  in damages. Ms. Trump is also suing a blogger, Webster Tarply. Both actions were filed in a Maryland state court. [Source here] [Motion to dismiss here]

Charles Harder

August 22, 2016: Melania Trump threatens defamation suits against news outlets. According to a New York Times report: “In an email, the lawyer, Charles J. Harder, said Ms. Trump, the wife of Donald J. Trump, the Republican presidential nominee, ‘has placed several news organizations on notice of her legal claims against them, including Daily Mail among others, for making false and defamatory statements about her supposedly having been an ‘escort’ in the 1990s.’ . . . He said no suit had been filed, but added, ‘That may change.'” (See also apology & retraction from one of the media outlets, the Inquisitr).

August 14, 2016: Mr. Trump tweets: “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!”

March 23, 2016: New York judge orders “plaintiffs pay to the defendants $500,000 as a sanction for their conduct in bringing a frivolous claim.” Miss Universe & Donald Trump v. Univision Networks & Studios, Inc. (Plaintiffs’ complaint here; case subsequently removed to federal court).

February 26, 2016: Donald Trump threatens to “open up the libel laws.”

“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” (video clip here)

November 19, 2015: Donald Trump tweets: “Watch [Gov. John] Kasich squirm — if he is not truthful in his negative ads I will sue him just for fun!”

September 21, 2015: Mr. Alan G. Garten, another one of Mr. Trump’s lawyers, sends a letter to Club for Growth’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies.

Alan Garten, executive vice president & general counsel to The Trump Organization

Here are some excerpts from Mr. Garten’s letter: “In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the attack ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.”

June 2014: Federal Judge Gonzalo Curiel dismisses Trump’s countersuit defamation suit seeking $1 million against Tarla Makaeff, who was lead plaintiff in a class action against Trump University. (see also here)

April 17, 2013: 9th Circuit denies Donald Trump Institute’s defamation claim: Makaeff et al. v. Trump University LLC (9th Cir., 2016)

December 27, 2012:  Letter from Mr. Garten threatens to sue online petition organizer re campaign urging Macy’s  to “dump Trump” (US News & World Report story here).

June 6-8, 2012:  Mr. Trump first threatened and then sued Miss Pennsylvania contestant, Sheena Monnin, in a defamation suit Trump filed after she posted on Facebook that she thought the 2012 Miss USA Pageant was “rigged.” According to a USA story, “an arbitration ruling upheld by a federal judge ordered her to pay $5 million in damages, although she and Trump eventually settled out of court for an undisclosed lesser amount.”

September 7, 2011: Trump loses libel lawsuit over being called a ‘millionaire.’ According to a Hollywood Reporter story: A state appeals court affirmed “that Trump hasn’t demonstrated that author Timothy O’Brien committed ‘actual malice’ by citing three unnamed sources who estimated the net worth of The Apprentice star to be between $150 million and $250 million.”

As reported in The Atlantic: “In January 2006, Trump filed a $5 billion lawsuit against author Timothy O’Brien and his publisher for understating Trump’s wealth. In his book Trump Nation, O’Brien reported that three people close to Trump had estimated his worth at between $150 and $250 million. Trump, who said he had told O’Brien that he was worth between $4 billion and $6 billion, claimed that O’Brien’s low estimate had hurt his reputation and cost him specific business deals. Trump’s suit was dismissed in July 2009, and his subsequent appeal failed in September 2011.” (see also, Business Wire, January 24, 2006)

* *  * *

Related Items

1. Floyd Abrams & Ronald Collins, “Confronting Trump — An American Debate Censorship Cannot Stop,” December 18, 2015
2. “NY ethics board drops Trump complaint about attorney general,” Associated Press, September 1, 2015
3. “Trump delivers on promise to sue chef Jose Andres,” Politico, August 1, 2015
4. “Donald Trump still battling lawsuits from defunct Trump University,” CBS/6, July 24, 2015
5. “7 times Trump has sued (or threatened to sue) over his wealth and brand,” Yahoo Finance, July 16, 2015
6. “The Story of Donald Trump’s lawsuit against Bill Maher Over An Orangutan Joke,” YouTube, July 7, 2014 (see here, too)
7. “Donald Trump’s lawyer: NBC in ‘breach’ on Miss Universe contract, CNN, July 5, 2015
8. “Trump GC Must Give Deposition In D&O Sanctions Fight,” Law360, March 19, 2014
9. Donald Trump Withdraws Bill Maher Lawsuit, Hollywood Reporter, April 3, 2013

See also:

• FAN 127.1 — Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court
• FAN 125.1 — 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

_________

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

Cert. Granted

1.  Expressions Hair Design v. Schneiderman
2. Lee v. Tam
3. Packingham v. North Carolina

Pending Petitions*

1. Bennie v. Munn
2. Augsburg Confession
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
4. Bondi v. Dana’s Railroad Supply
5. Flytenow v. Federal Aviation Administration

Cert. Denied

1. Armstrong v. Thompson
2. Wolfson v. Concannon
3. Dart v. Backpage.com
4. NCAA v. O’Bannon
5. Mech v. School Board of Palm Beach County
6. Williams v. Coalition for Secular Government 
7. Pro-Football v. Blackhorse 

Free Speech Related Cases

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

First Amendment Religious Expression Cases

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
• Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

→  The Court’s next Conference is on October 28, 2016

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

Last Scheduled FAN, #128: Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling

Next Scheduled FAN, #130: November 2, 2016

There is nothing new about the assault on sexual content.  What is new is the rubric of public health concerns over sex trafficking and child safety to justify broad restrictions on sexual content, private censorship of sexual expression, and citing health and safety of sex workers to justify onerous restrictions on producers and performers.

That is how the Free Expression Network described a recent panel discussion it hosted, one titled  “The Assault on Sexual Expression.” The panel was part of an October 17, 2016 program held in Washington, D.C. It was moderated by Ricci Levy (President of the Woodhull Freedom Foundation); the panelists were Larry Walters (partner, Walters Law Group), David Horowitz (Executive Director, Media Coalition), and Joan Bertin (Executive Director, National Coalition Against Censorship).

Item: Do you remember the group named Morality in the Media? In keeping with the times, in 2015 the group changed its name to the National Center on Sexual Exploitation. The group’s mission: “Confronting sexual exploitation.” Apparently, morality has taken a backseat to concerns such as:

• “Porn Harms” (see e.g. Gary Wilson, Your Brain on Porn: Internet Pornography and the Emerging Science of Addiction (Commonwealth Publishing, 2015))
• “Sex Trafficking,” and
• “Sexual Exploitation“

Consider also this item from the Republican Platform for 2016: “The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the lives of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography, which is closely linked to human trafficking.”

It all sounds so liberal, so modern, and so unobjectionable. Exit the old Anthony Comstock mindset, enter the new pro women, pro children, and pro health mindset. But just as the anti-pornography movement hoists its new flag,  opposition to it is mounting in psychological and legal quarters.

→ Enter Lawrence Walters  and Dr. Marty Klein — a seasoned First Amendment lawyer and certified sex therapist.

War on porn over?

First, Mr. Walters with these exclusive statements to FAN: “For decades, the “War on Porn” was justified on the grounds that viewing explicit material is immoral, and masturbation is a sin. As time passed, and erotica became mainstreamed, these hackneyed claims wore thin. Now, all the top celebrities have a sex tape, the Adult Video News Awards are broadcast on Showtime, and porn sites get more visitors than Netflix, Amazon, and Twitter, combined. Moral acceptability of porn is rising, particularly among women who now make up 24% of the largest porn site users. The federal government has essentially given up on prosecuting obscenity prosecutions, with no new cases being filed since President Obama took office. In 2014, thinkprogress.com declared that the War on Porn was over, and the censors had lost.”

Larry Walters

“The prior justifications for opposing sexually explicit media,” he added, “needed a 21^st Century face lift if they were to survive. Thus was born the idea of porn as a ‘public health crisis.’ Health and fitness is all the rage, so the new battle cry had a nice ring to it. To give the campaign a boost, ‘experts’ began claiming that porn was also “addictive”, and generated harmful “erototoxins” that changed the chemical makeup of the brain. Naturally, Congress held hearings to explore this new flavor of porn panic.”

“One issue that unites virtually all lawmakers,” argues Mr. Walters, “is the fight against sex trafficking. In overwhelming majority votes, the House and Senate passed the controversial SAVE Act in 2015, imposing potential life imprisonment on anyone who advertises acts of sex trafficking. A bipartisan group of lawmakers has recently called upon the Justice Department to be more proactive in enforcing the law. Now sex trafficking is being used as another justification for the renewed War on Porn? A recent, comprehensive report funded by the DOJ concluded that pornography contributes to sex trafficking. The report, entitled; Identifying Effective Counter-Trafficking Programs and Practices in the U.S.: Legislative, Legal, and Public Opinion Strategies that Work, concludes that consumption of sexually explicit media ‘contributed to a more laisse-faire attitude toward [sex trafficking].'”

In sum, “labeling pornography as a public health crisis, addictive, and supportive of sex trafficking, fits the modern agenda. It’s a far cry from claiming that looking at nudie mags is immoral.”

Porn & anti-social behavior

Next, there is Dr. Marty Klein, author of a just-published book titled His Porn, Her Pain: Confronting America’s PornPanic with Honest Talk About Sex (Praeger, 2016). Here are a few items of interest from the book:

• “Does porn lead to anti-social outcomes? Since free, high-quality porn flooded America 16 years ago, the rates of sexual violence, child molestation, and divorce [in the United States] have declined.”
• “The overwhelming majority of Internet porn shows happy, smiling people enjoying playful, consensual sex.  Critics who focus only on the violent depictions on the fringe — which most people don’t watch — aren’t talking about porn, they’re using porn to talk about other things.”
• “Women don’t have to compete with porn actresses any more than men have to compete with John Wayne, George Clooney, or Shia LaBeouf.  Remember, men aren’t relating to the women in porn, they’re relating to the characters the actresses play.”
• “To say that porn demeans women is to deny the reality of some women’s passion, lust, and desire.  It’s to say that women never enjoy what men enjoy.  It’s to say that women don’t enjoy playing games with their sexuality, including power games.  It’s to say that women shouldn’t be who they are or enjoy who they are, but that they can only enjoy ‘authentic’ sexuality within limited (and historically stereotypical) bounds. This is not feminism.”

> > > See also Jerry Barnett, Porn Panic!: Sex and Censorship in the UK (Zero Books, August 26, 2016)

→ Next, enter Larry Walters, the First Amendment lawyer.

→ See also Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, California Law Review (2016):

Professor Jeannie Suk

“We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. . . . An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment.”

* * * *

→ See also David Post, A setback for First Amendment protection for anonymous speech, The Volokh Conspiracy, Oct. 31, 2016 (“the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all “Internet identifiers” just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.)

* * * *

→ Related items:

• Congresswoman Speier, Fellow Members of Congress Take on Nonconsensual Pornography, AKA Revenge Porn, July 14, 2016 (endorsed, among others, by Dean Erwin Chemerinsky and Professor Mary Anne Franks)

• Matthew Hall  & Jeff Hearn, Revenge Pornography: Gender, Sexuality and Motivations (Routledge, April 7, 2017)

Ruthann Robson: Supreme Court Grants Cert. in First Amendment Rights of Sex Offenders to Access Social Media

Over at the Constitutional Law Prof Blog, Professor Ruthann Robson was quick to discuss the Court’s latest cert. grant in a First Amendment free expression case. Here are a few excerpts:

Professor Ruthann Robson

“The United States Supreme Court has granted certiorari in Packingham v. North Carolina involving the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites.”

“In its opinion the Supreme Court of North Carolina, reversing the court of appeals, concluded that the statute was constitutional on its face and as applied to Packingham, a registered sex offender, who had a Facebook.com page.”

“The opinion for the majority by Justice Robert Edmunds,  found that the North Carolina statute was content-neutral.  The court reasoned that the “limitations imposed by the statute are not based upon speech contained in or posted on the site,” but simply on the character of the site as one that is available for use by minors.  Thus the court applied “intermediate scrutiny” under United States v. O’Brien (1968), with the O’Brien factors. Perhaps most interesting is the court’s analysis of the availability of  ample alternatives for expression . . . .”

“On the as-applied challenge, the court similarly rejected Packingham’s First Amendment claims, finding that the incidental burden on Packingham’s speech was no greater than was essential to the furthering the government’s interest in protecting children.  Similarly, the court concluded that the statute was not overbroad and that Packingham could not raise a vagueness challenge given that he was within the purview of the statute. . . .”

“Other courts have ruled on the issue of sex offender bans from social media. Recall the Seventh Circuit’s opinion finding Indiana’s sex offender ban from social media unconstitutional.  And also recall the 2012 decision by a federal district judge finding Louisiana’s broad prohibition unconstitutional under the First Amendment.  If one were to make a wager, it would seem that the North Carolina statute would similarly be declared unconstitutional.”

→ Cert. petition here (Glen Gerding, counsel of record)

→ Brief Amici Curiae of Professors AshutoshBhagwat, Richard Garnett, Andrew Koppel-man, Seth Kreimer, Lawrence Lessig, Sanford Levinson, Robert O’Neil, David Post, LawrenceSager, Seana Shiffrin, Steven Shiffrin, GeoffreyStone, Nadine Strossen, William Van Alstyne,and James Weinstein in Support of Petitioners (Eugene Volokh, counsel of record)

→ Brief of Respondent North Carolina in opposition (Anne Murray Middleton, Special Deputy Attorney General, counsel of record)

→ See also Eugene Volokh, Supreme Court agrees to consider N.C. ban on sex offenders’ access to most prominent social networks, The Volokh Conspiracy, Oct. 28, 2016 (“The court below essentially refused to apply the ‘ample alternative channels’ requirement in any meaningful way. In this respect, its decision was an extreme version of some circuit court decisions, and inconsistent with other circuit court decisions and with this Court’s decision in City of Ladue. This Court should grant certiorari and remind lower courts that the ‘ample alternative channels’ requirement should be robustly applied.”)

Heffernan v. City of Paterson ends in settlement

This from a Bloomberg BNA story: “Oct. 20 — A former Paterson, N.J., police officer who won a favorable U.S. Supreme Court ruling on his First Amendment retaliation claim has reached a $1.6 million settlement with the city, the parties’ attorneys said (Heffernan v. City of Paterson, D.N.J., No. 06-3882, settlement approved 10/17/16).”

“Jeffrey Heffernan sued after being demoted in 2005 by supervisors who mistakenly believed he was supporting a political opponent of then-Mayor Jose Torres. A federal appeals court dismissed Heffernan’s claim, saying he hadn’t engaged in any First Amendment-protected activity since he didn’t actually campaign for or otherwise support the mayor’s rival.”

“But the Supreme Court in April said a public employee who is punished for his perceived political affiliation raises a First Amendment retaliation claim.”

→ “The city settled to avoid further litigation costs in a case with a “tortuous” 10-year history, said Domenick Stampone, the Paterson corporation counsel. After the Supreme Court’s ruling and the Third Circuit’s subsequent directive that the parties seek a resolution, the city’s decision to settle was an “economic one,” Stampone told Bloomberg BNA.”

“Heffernan’s lawsuit yielded an ‘important’ First Amendment decision that benefits all public employees, said Mark Frost, the Philadelphia lawyer who represented him.”

“The Supreme Court ruled ‘the government can’t retaliate against an individual worker’ because he is perceived to be participating in political activity, Frost told Bloomberg BNA.”

“The Paterson City Council approved the settlement after Heffernan’s case had been remanded to a federal district court in New Jersey, Frost said. No court approval is necessary after the council’s action, he said. Paterson will pay the settlement to Heffernan in three installments, with the first payment due Nov. 15, Frost said.”

“The settlement will be fully paid by Sept. 30, 2017. The settlement amount includes Heffernan’s attorneys’ fees, Frost said.”

“Gregg L. Zeff in Mt. Laurel, N.J., also represented Heffernan. Lite DePalma Greenberg LLC and Dwyer Connell & Lisbona represented Paterson.”

→ To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com  [ht: Alan Morrison]

Georgia high court strikes down verbal abuse law as overbroad

This from a Golden Isles News story by Lauren McDonald:  “A Glynn County man will not be charged for violating a state law that prohibits verbally abusing a public school employee in the presence of pupils, as the state’s highest court ruled Monday that the law is unconstitutional.”

Justice Carol Hunstein

“‘Although this criminal statute may have a legitimate application, it also makes unlawful a substantial amount of constitutionally protected speech,’ stated a unanimous opinion issued by Georgia Supreme Court justices on Monday. Michael Antonio West, the father of two Glynn County students, attempted to have his charges dismissed after he allegedly boarded a school bus packed with school-aged children and verbally abused the bus driver. . . .”

“Jason Clark, a Brunswick attorney, and Mark Bennett, a Texas lawyer who specializes in First Amendment cases, argued the case before the Georgia Supreme Court in Atlanta. ‘I thought it was a well-reasoned opinion that reinforced the First Amendment rights,’ Clark said. ‘Georgia basically followed what four other states have decided before it.'”

→ West v. The State (GA., Oct. 31, 2016) (per Hunstein, J.) (“Although this criminal statute may have a legitimate application, it also makes unlawful a substantial amount of constitutionally protected speech. . . . We agree with West that this statute, though perhaps well intentioned, neither regulates unprotected speech nor is appropriately tailored to meet its intended objective and is therefore overbroad.”)

Video: Newseum Institute Hosts Free-Speech Panel 

On October 20th, the Newseum Institute and The Media Institute co-hosted a panel discussion, “Free Speech: Still the ‘American Way’?” which brought First Amendment experts together to address today’s free expression issues. The discussion, moderated by Newseum President and CEO Jeffrey Herbst, focused on the nation’s commitment to freedom of speech today. It was held to commemorate the 12th annual Free Speech Week, a nonpartisan event that spotlights the importance of free speech in our democracy.

In his introduction, journalist John M. Seigenthaler said he was “most concerned about free press in this country. And given the political campaign that’s going on right now, it is even more disturbing than it’s been in a long time.”

Panelists included:

• Rodney A. Smolla, award-winning author and First Amendment scholar
• Robert Corn-Revere, notable First Amendment attorney
• John Watson, lawyer, journalist and American University professor, and
• John M. Seigenthaler, former NBC, MSNBC and Al Jazeera America news anchor.

→ video here

Free Speech on College Campuses

→ Zach Greenberg, Eighth Circuit Decision Opens Door for Violations of Students’ Speech Rights, FIRE, Nov. 1, 2016 (Keefe v. Adams) (Petitioners: Foundation for Individual Rights in Education; Alliance Defending Freedom; Student Press Law Center; Electronic Frontier Foundation; American Booksellers Foundation for Free Expression; National Coalition Against Censorship; & American Civil Liberties Union of Minnesota)

→ Ruthann Robson, Divided Eighth Circuit Upholds Nursing Student’s Dismissal for Facebook Posts, Constitutional Law Prof Blog, Oct. 26, 2016

1. Bob Collins, UW: Obama ‘lynching’ protected by First Amendment, NewsCut, Nov. 1, 2016
2. Eric Dixon, Why I refuse to support Yale’s idea of free speech, The New America, Nov. 1, 2016
3. Stephen Bates, Colorado students take aim at free speech zones after political activities get shut down, The College Fix, Nov. 1, 2016
4. Andrew Dys, York Tech to honor contract with pro-Confederacy group; no Confederate flags allowed, The Herald, Oct. 31, 2016
5. Brian Min, Student has cereal thrown at her for advertising anti-PC campus speech, The College Fix, Oct. 31, 2016
6. Jenna Lifhits, George Mason U. reaffirms commitment to Free Speech in all-student email, Weekly Standard, Oct. 31, 2016
7. Adam Zielonka, A UMD student group hosted a rally to discuss freedom of speech on the campus, The Diamonback, Oct. 30, 2016
8. Jacqueline Pfeffer Merrill, A rare win for freedom of expression on a university campus, Charlotte Observer, Oct. 29, 2016
9. Richard Epstein, Free Speech and Sexual Harassment at Yale, Newsweek, Oct. 27, 2016
10. Saree Makdisi, Keeping campuses safe for free speech, Los Angeles Times, Oct. 25, 2016
11. Jim Sleeper, The Conservatives Behind the Campus ‘Free Speech’ Crusade, American Prospect, Oct. 19, 2016
12. Diane Turner, Preserving Artistic Freedom on Campus, FIRE, Oct. 19, 2016
13. Nennifer Schuessler, Can Cries of ‘Free Speech’ Be a Weapon? Students Say Yes, New York Times, Oct. 16, 2016

Forthcoming Book

•  Eugene Martin LaVergne, How “Less” is “More”: the Story of the Real First Amendment to the United States Constitution (First Amendment Free Press, October 7, 2016)

New & Forthcoming Scholarly Articles

1. Mary Anne Franks, Revenge Porn’ Reform: A View from the Front Lines, Florida Law Review (2016)
2. Elizabeth Shaver, A Missed Opportunity to Clarify Students’ First Amendment Rights in the Digital Age, Brooklyn Law Review (2017)
3. Paul Secunda, Zimmer on ‘Reason-Specific Protections’ for Employee Speech: Predicting the Constitutionalization of the Private-Sector Workplace, Employee Rights and Employment Policy Journal  (2017)
4. Michael Grynberg, A Trademark Defense of the Disparagement Bar, Yale Law Journal Forum (Oct. 26, 2016)
5. Lisa Ramsey, A Free Speech Right to Trademark Protection?, Trademark Reporter (2016)
6. Mark Strasser, Incitement, Threats, and Constitutional Guarantees: First Amendment Protections Pre- and Post-Elonis, University of New Hampshire Law Review (2016)

News, Editorials, Op-eds, & Blog Posts

→ Zoe Tillman, Trump Libel Article Will Run in ABA Publication, Connecticut Law Tribune, Oct. 31, 2016

1. David L. Hudson, Jr., Is cyberbullying free speech?, American Bar Association Journal, Nov. 1, 2016
2. Kalev Leetaru, Has Social Media Killed Free Speech?, Forbes, Oct. 31, 2016
3. Recording Police Is Protected by the First Amendment EFF Tells Court, Electronic Frontier Foundation, Oct. 31, 2016
4. Jessica Conditt, Peter Thiel’s tech wealth made him a First Amendment gatekeeper (But his statements on the matter make clear he shouldn’t be), Engadget, Oct. 31, 2016
5. Dimitra Kessenides, First-Amendment Lawyer Ted Boutrous: Trump’s Threats Won’t Squelch Free Speech, Bloomberg, Oct. 27, 2016
6. Eli Hager, Does the First Amendment End at the Prison Gate?, The Marshall Porject, Oct. 25, 2016
7. Posting a ballot selfie? Better check your state laws first, Associated Press, Oct. 23, 2016
8. Andrew Hamm, Kagan and Urofsky share admiration for Justice Louis Brandeis, SCOTUSblog, Oct. 20, 2016

YouTube

• 2016 New England First Amendment Awards

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

Cert. Granted

1.  Expressions Hair Design v. Schneiderman
2. Lee v. Tam
3. Packingham v. North Carolina

Pending Petitions*

1. Bennie v. Munn
2. Augsburg Confession
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
4. Bondi v. Dana’s Railroad Supply
5. Flytenow v. Federal Aviation Administration

Cert. Denied

1. Armstrong v. Thompson
2. Wolfson v. Concannon
3. Dart v. Backpage.com
4. NCAA v. O’Bannon
5. Mech v. School Board of Palm Beach County
6. Williams v. Coalition for Secular Government 
7. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

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

Free Speech Related Case: Pending 

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

First Amendment Religious Expression Case: Pending 

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

→  The Court’s next Conference is on November 4, 2016

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

Next Scheduled FAN, #131: November 9, 2016

Last Scheduled FAN, #129: A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press