On December 2, 2016, Congressman Michael R. Turner (R-OH) introduced the “Protect the Flag Act” (H.R. 6433). Section 2 of the proposed bill provides:
“(a) In General.—Federal funds may not be made available to an institution of higher education (as defined in section 102(a) of the Higher Education Act of 1965 (20 U.S.C. 1002(a))) that, pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution, removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.”
“(b) Reinstatement Of Eligibility.—The prohibition described in subsection (a) shall cease to apply with respect to an institution described in such subsection upon complete and proper reinstatement, by the institution in its official capacity, of the flag of the United States at any and all locations on campus property (including across multiple campuses, if applicable) from which a previously displayed flag of the United States was removed, censored, taken down, prohibited, or otherwise halted from display pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution.”
→ The summary caption for the Bill states: “To render ineligible for Federal funds any institution of higher education that removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.” Fifty-two other House Republicans have signed onto the measure.
![A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)]()
A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)
According to a news story by Joseph Cohn wriitng for FIRE, the “bill was likely inspired by the recent controversy at Massachusetts’ Hampshire College in which the institution temporarily decided to stop flying the American flag. Hampshire’s decision came after their own American flag was stolen and burned amongst protests that the flag, a proud symbol to some, represented fear and exclusion to others. According to CNN, the school’s Board of Regents then decided to lower the flag to half-staff in order to ‘continue the campus discussion on the flag’s meaning,’ but some interpreted that decision as a protest of the election results. It was then that the college decided to not fly the flag at all, spurring harsh public criticism.”
→ See O’Reilly Factor video clip here (Watters’ World: Flag controversy edition).
According to a December 2, 2016 Boston Globe story, “Hampshire College, which prompted a firestorm by removing the Stars and Stripes three weeks ago, restored the banner to the campus on Friday as its president and students expressed hope that the controversy would inspire a forthright dialogue.”
Hampshire College President’s Comments
“We did not lower the flag to make a political statement,” Hampshire College President Jonathan Lash said. According to a news report in the Daily Wire, Lash added: “Nor did we intend to cause offense to veterans, military families or others for whom the flag represents service and sacrifice. We acted solely to facilitate much-needed dialogue on our campus about how to dismantle the bigotry that is prevalent in our society. We understand that many who hold the flag as a powerful symbol of national ideals and their highest aspirations for the country — including members of our own community — felt hurt by our decisions, and that we deeply regret.”
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Congressman Michael Turner
Congressman Turner’s Comments
“I am proud to introduce legislation that will protect the American flag from censorship across the country,” Congressman Turner said in a statement to the Washington Examiner. “The American flag is a symbol of freedom throughout the world and should be respected as such. Recent action by Hampshire College to remove the American flag from its campus was a blatant act of censorship. Furthermore, Hampshire College’s decision disrespected our servicemembers, veterans, and the liberties our flag embodies. We must work to ensure that such acts of censorship are not supported by the government in the future.”
Though unlikely to pass this year owing to time constraints, the bill would be considered next year.
Headline: “Oklahoma To Require Anti-Abortion Signs In Public Restrooms”
Hayley Miller, writing in the Huffington Post, reports that “Oklahoma may require public restrooms in restaurants, hospitals, public schools, hotels and nursing homes to post signs with anti-abortion sentiments as part of a drive against the procedure.”
“The state’s board of health was due to discuss Tuesday regulations that would force any restrooms in buildings regulated by the Oklahoma Health Department to carry signs that state”:
There are many public and private agencies willing and able to help you carry your child to term and assist you and your child after your child is born, whether you choose to keep your child or to place him or her for adoption. The State of Oklahoma strongly urges you to contact them if you are pregnant.
![State senator AJ Griffin]()
State senator A.J. Griffin
→ According to an Associated Press story, “the State Board of Health will consider regulations for the signs on Tuesday. Businesses and other organizations will have to pay an estimated $2.3 million to put up the signs because the Legislature didn’t approve any money for them. The provision for the signs was tucked into a law that the Legislature passed this year that requires the state to develop informational material “for the purpose of achieving an abortion-free society.” The signs must be posted by January 2018.”
→ “The anti-abortion group Oklahomans for Life requested the bill,” reports the St. Louis Post Dispatch. “The sponsor, Sen. A.J. Griffin, said she may revise the measure in the upcoming legislative session to more narrowly target it to exclude some facilities.”
“‘I do see how it is going to need to be tempered a tad,” said Griffin, a Republican from Guthrie. ‘We need to make sure we have something that’s reasonable and still effective.'”
[ht: David Horowitz]
Florida Abortion Law Challenged on First Amendment Grounds
“Abortion-rights advocates and the American Civil Liberties Union on Monday sued the state over abortion restrictions the groups say would have a chilling effect on free speech,” reports the Tampa Bay Times.
“The lawsuit, filed in federal court in Tallahassee, asks a judge to throw out part of a law requiring agencies that refer women to abortion providers to register with and pay a fee to the state. It was passed this spring by the Legislature as part of a broader abortion measure and signed into law by Gov. Rick Scott.”
“Because of how the law is structured, the ACLU and others argue, the law would require any private person who gives advice to a woman considering an abortion to register with the state. . . .”
“‘A woman considering an abortion may consult with any number of people in making her decision,” said Nancy Abudu, legal director of the ACLU of Florida said in a written statement. ‘This ill-conceived law criminalizes the intimate conversations a woman has with her support network. The law not only forces people to provide information they may not be qualified to provide, it clearly intends to bully and intimidate women’s trusted advisors with a vague and complicated bureaucratic process, under the threat of criminal charges.'”
Headline: “First Amendment battle: N.J. judge bars newspaper from publishing articles”
“A New Jersey judge has ordered the Trentonian, a daily newspaper in the Garden State, to halt publication of any articles pertaining to an ongoing child abuse case in a ruling that is inherently at odds with the First Amendment,” reports Tré Goins-Phillips writing in The Blaze.
“Since October, reporter Isaac Avilucea has been writing about a 5-year-old Trenton boy who brought heroin and crack to his school, which resulted in the child being taken from his parents.”
“From the little boy’s mother, Avilucea also obtained a child abuse complaint, which was filed by the New Jersey Division of Child Protection, that sought to remove him his parents’ custody. The mother’s decision to give the complaint to the reporter was in violation of New Jersey law, according to the Washington Post:
(1) the state must generally keep any child abuse records and reports, (2) the state shall release such information to parents “only to the extent necessary for the requesting parent … to discuss services or the basis for the department’s involvement or to develop, discuss, or implement a case plan for the child,” but (3) the parent “shall keep the records and reports, or parts thereof, confidential and shall not disclose the records and reports or parts thereof except as authorized by law.”
“As a result, the state got a court order for a temporary injunction, which was issued by Superior Court Judge Craig Corson and bars the Trentonian from publishing ‘any information obtained from the filed verified complaint.’ In addition, the order called on the newspaper “to remove from any publication source any documents if already printed or distributed.'”
“. . . ‘The all-but-total ban on prior restraints exists as a critical protection of First Amendment rights,” Floyd Abrams, a legal expert on press freedom who was involved in the Pentagon Papers case, told The Record, later adding that the First Amendment ‘has always protected against prior restraints with particular vigor and authority.'”
→ The Post article reference above was by Eugene Volokh, N.J. newspaper ordered not to publish complaint in heroin/crack-to-school child custody case, The Volokh Conspiracy, December 12, 2016
→ See also Editorial, First Amendment takes a hit in Trenton, NorthJersey.com, Dec. 13, 2016
FIRE Report: Spotlight on Speech Codes 2017
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The Foundation for Individual Rights in Education has just released a report titled Spotlight on Speech Codes 2017: The State of Free Speech on Our Nation’s Campuses.
The study reports on written policies at 449 of America’s largest and most prestigious colleges and universities, all of which are accessible online in FIRE’s searchable Spotlight speech code database.
Here are some of the findings from the report:
- 39.6 percent of surveyed institutions maintain severely restrictive, red light speech codes—a nearly 10 percentage point drop from last year’s 49.3 percent.
- Of the 449 schools surveyed, 27 received FIRE’s highest, green light rating for free speech. This number is up from 22 schools as of last year’s report.
- Twenty schools or faculty bodies in FIRE’s Spotlight database adopted statements in support of free speech modeled after the one adopted by the University of Chicago in January 2015.
“The precipitous decline in restrictive speech codes means thousands of current and future students and faculty members will not be subject to policies that clearly violate their basic rights,” said FIRE Vice President of Policy Research Samantha Harris.
Groups Release Report on College Press Freedom
This from a Press Release from the Student Press Law Center:
The American Association of University Professors (AAUP), the Student Press Law Center (SPLC), the College Media Association (CMA) and the National Coalition Against Censorship (NCAC) Thursday jointly released a report, “Threats to the Independence of Student Media,” calling on the nation’s colleges to address the problems of censorship, retaliation and excessive secrecy that imperil the independent news coverage essential for civically healthy campuses.
The report cites multiple cases in which college and university administrations exerted pressure in attempts to control, edit, or censor student journalistic content. This pressure has been reported in every segment of higher education and every institutional type: public and private, four-year and two-year, religious and secular.
The report finds that administrative efforts to subordinate campus journalism to public relations concerns are inconsistent with the mission of higher education to foster intellectual exploration and debate. And while journalism that discusses students’ dissatisfaction with the perceived shortcomings of their institutions can be uncomfortable, it fulfills an important civic function.
Among its many recommendations for improving the transparency of college campuses and providing a more supportive climate for student-produced news coverage, the report recommends curtailing the authority of campus public-relations offices to obstruct journalists’ access to decision-makers:
No postsecondary institution should require its faculty or staff to clear interactions with the student media through an institutional public-relations office, nor should campus public-relations offices obstruct student journalists from gaining direct access to those in positions of official authority. … Presidents and trustees should unequivocally instruct campus public-relations offices that their obligation is to facilitate maximum public access to records and interviews.
Henry Reichman, first vice president of the AAUP, said, “Academic freedom extends to advisers of student media who support the critical work of student journalists. It’s important to draw attention to these threats to student media and to work towards solutions.”
Frank D. LoMonte, executive director of the SPLC, said, “It is hypocritical for colleges to claim they support civic engagement while defunding student news organizations, removing well-qualified faculty advisers, and otherwise intimidating journalists into compliance. Colleges are more obsessed with promoting a favorable public image than ever before, but a college that retaliates against students and faculty for unflattering journalism doesn’t just look bad—it is bad. We need a top-level commitment from the presidents of America’s colleges and universities to support editorially independent student-run news coverage, including secure funding and retaliation protection for students and their advisers.”
Joan Bertin, NCAC executive director, said, “This report exposes restrictions on press and speech freedoms on campus and exhorts college and university administrators to educate students in the operation of our constitutional system by allowing students to engage in its most critical functions: seeking information, becoming engaged and informed, and speaking out on matters of importance.”
Kelley Lash, president of CMA, said, “This issue impacts millions of educators and students. College Media Association emphatically supports the First Amendment freedoms of all student media at all institutions, both public and private, and agrees that these media must be free from all forms of external interference designed to influence content. Student media participants, and their advisers, should not be threatened or punished due to the content of the student media. Their rights of free speech and free press must always be guaranteed.”
Toobin: “Gawker’s Demise & the Trump-Era Threat to the First Amendment”
The December 19th issue of The New Yorker has an article by Jeffrey Toobin by that title. Here are a few excerpts:
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“When Hulk Hogan faced off in court against the Web site Gawker, earlier this year, it was easy to become distracted by the rococo tawdriness of the spectacle. After all, the case centered on the leak of a surreptitiously videotaped sexual encounter between Hogan, the professional wrestler, and the wife of his erstwhile best friend, who is named Bubba the Love Sponge. The trial, which took place in St. Petersburg in March, laid out a sordid tale of betrayal and exposure, told mostly by Hogan, whose lavishly mustachioed visage remains one of the prominent faces of the sport of pro wrestling. . . . Even after the jury’s verdict—a gargantuan award of a hundred and forty million dollars, in Hogan’s favor—few saw the case as anything more than a bizarre outlier, of little relevance to anyone except its protagonists.”
“But the lawsuit seems destined to have an enduring afterlife, and not just because of the revelation that it had been secretly financed by a tech billionaire with a vendetta against Gawker. The verdict heralds a new era, in which judges and jurors see the ribald world of the Internet, rather than the staid realm of newspapers, as the dominant form of journalism. . . .”
“. . . [I]n an age when Internet publishers can, with a few clicks, distribute revenge porn, medical records, and sex tapes—all of it truthful and accurate—courts are having second thoughts about guaranteeing First Amendment protection. Hulk Hogan conceded that Gawker’s story about him was true, yet he still won a vast judgment and, not incidentally, drove the Web site out of business. The prospect of liability, perhaps existential in nature, for true stories presents a chilling risk for those who rely on the First Amendment.”
![Jeffrey Toobin]()
Jeffrey Toobin
“. . . For decades, the news media benefitted from the deference paid by courts to the judgments of newspaper editors. The judge in federal court treated Gawker’s editors as if they were running a newspaper, and he declined to second-guess them about what constitutes the news. The jury in state court did the opposite. The question now is whether the law, instead of treating every publication as a newspaper, will start to treat all publications as Web sites—with the same skepticism and hostility displayed by the jury in Tampa. The new President and his fellow-billionaires, like Thiel, will certainly welcome a legal environment that is less forgiving of media organizations. Trump’s victory, along with Hulk Hogan’s, suggests that the public may well take their side, too.”
Media Groups Argue for Protection of Journalists in Gawker Bankruptcy Proceedings
Here are excerpts from a December 12, 2016
Press Release from the New England First Amendment Coalition:
“The New England First Amendment Coalition recently joined an amicus curiae brief in a federal bankruptcy case that could expose former Gawker reporters to personal liability and, in the words of amici, ‘send a chilling message to journalists everywhere.'”
“The bankruptcy petition was filed after a Florida court earlier this year upheld a $140 million invasion of privacy judgment against Gawker for publishing portions of a sex tape involving former professional wrestler Hulk Hogan.”
“In re Gawker Media, LLC is currently being heard by the United States Bankruptcy Court for the Southern District of New York. Twenty-one media organizations and press advocates joined the Dec. 5 brief, which was initiated by the Society of Professional Journalists and the Reporters Committee for Freedom of the Press.”
“Of concern to amici is an indemnification provision that may be removed from the liquidation plan of Gawker Media, the online media company that filed for bankruptcy protection earlier this year.”
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“‘Journalists everywhere rely on such indemnification guarantees as a critical protection that allows them to engage in the sort of intrepid newsgathering and publishing that the First Amendment endorses,’ the amici wrote. ‘To eliminate them from the plan would not just harm the well-being of Gawker’s former employees; it also would send a chilling message to journalists everywhere that, in the event of a media company’s bankruptcy, what had heretofore been their employer’s liabilities could suddenly become their own.'”
“Amici argued that the First Amendment provides protection for journalists from defamation and related litigation. Courts routinely include safeguards for the gathering and publishing of news, they wrote, and such protections are needed in this case.”
According to amici:
“‘Both traditional and internet publishers typically indemnify their reporters and editors against claims arising from their journalism, including defamation claims. Such indemnification agreements are crucial to news reporting and publishing in the present age for the reason that few reporters and editors can individually afford to defend even a marginal defamation claim. . . . As a practical matter, without the promise of indemnification, even the threat of a baseless libel action may suffice to kill a reporter’s pursuit of a story or place an entire topic out of bounds, rendering the First Amendment’s protection of the freedom of the press a dead letter in every way that counts. Few journalists could bear the risk of reporting on controversial matters, and the public would go uninformed on matters of intense and legitimate public interest, such as allegations of criminal conduct, government corruption, and corporate malfeasance.'”
“‘These are potential consequences not just for former Gawker journalists, but reporters in news organizations throughout the country,’ said Justin Silverman, NEFAC’s executive director.”
“‘Our watchdogs need the ability to gather news without fear of personal liability,’ Silverman said. ‘If Gawker reporters are exposed through these bankruptcy proceedings, journalists for other organizations may feel less confident in their own protection and less willing to pursue the controversial stories that need to be told.'”
Norman Lear: Filmmakers Must Protect First Amendment in Trump Era
![Norman Lear]()
Norman Lear
This from The Hollywood Reporter: “At the 32nd Annual International Documentary Association awards held at the Paramount Theater on Friday, Norman Lear stressed filmmakers’ top priority as Donald Trump becomes the next president.”
“‘As we enter a very dangerous time in our country, with a president-elect who does not seem to understand, much less cherish, the Constitution, I am happier than I am able to express that there is an International Documentary Association to fight for the first amendment,’ he said as he accepted the Amicus award with his wife Lyn. ‘It pains me to say this, but Donald Trump is, in many ways, a creature of the creative community. Reality TV made him a star and perhaps went a long way to making him a president. Our president. To the extent that that is true and we’re guilty, we have serious obligations.'”
“‘If, for example, he or his administration in any way threatens the free speech rights of our documentary filmmakers, the IDA and every supporter in this room must — will, I am sure — hunker down together and fight our asses off,’ he asserted. . . .”
ConSource to Host Event re 225th Anniversary of the Ratification of the Bill of Rights
→ ConSource and the
National Archives will
host a special celebration of the 225th Anniversary of the Ratification of the Bill of Rights. Here is some information for tomorrow’s event:
![avatar]()
The Bill of Rights in the 21st Century
Thursday, December 15, at 7:00 p.m.
National ArchivesWilliam G. McGowan Theater, 7th and Constitution Avenue, NW, Washington, D.C.
The event will be moderated by Supreme Court correspondent Jess Bravin from the Wall Street Journal. The panelists include:
- Judge Thomas Griffith, United States Court of Appeals for the District of Columbia Circuit;
- Judge Patricia Millett, United States Court of Appeals for the District of Columbia Circuit; and
- Judge Andre M. Davis, United States Court of Appeals for the Fourth Circuit.
→ Please register for the event here.
→ The event will also stream live on the National Archives’ YouTube page.
From Cato Institute: Can Free Speech Flourish in the Age of Trump?
Reason’s Nick Gillespie and Danish journalist Flemming Rose discussed that question at Cato Institute recently. A C-SPAN video of the December 6th event can be found here.
First Amendment Salons Archived in First Amendment Library
The First Amendment Salons, dating back to April of 2014, are now archived in FIRE’s First Amendment Library.
→ The last Salon, which occurred on December 8, 2016, was titled “The ACLU & the First Amendment.” David Cole was interviewed by Jess Bravin. A podcast and video of that salon will be posted soon.
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New & Forthcoming Books
- Meg Leta Jones, Ctrl + ZThe Right to Be Forgotten (New York University Press, 2016)
- Randy Bobbitt, Free Speech on America’s K–12 and College Campuses: Legal Cases from Barnette to Blaine (Lexington Books, December 23, 2016)
- David van Mill, Free Speech and the State: An Unprincipled Approach (Palgrave Macmillan, February 22, 2017)
- Kevin W. Saunders, Free Expression and Democracy: A Comparative Analysis (Cambridge University Press, March 31, 2017)
- Alexander Brown, The Problem of Hate Speech: Its Social, Political, and Legal Dimensions (Routledge, June 28, 2017)
- Jennifer Downey, Public Library Collections in the Balance: Censorship, Inclusivity, and Truth (Libraries Unlimited, June 30, 2017)
Two-volume Encyclopedia of The First Amendment
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Over at Barnes and Noble online you can purchase the two-volume Encyclopedia of The First Amendment (edited by John R Vile, David L. Hudson & David Schultz) for as little as $2.82, or for $7.03 on Amazon, plus shipping.
This is an incredible give away for a remarkable 1,200 page set featuring more than 1,400 entires related to the First Amendment’s five freedoms. The set was originally published by Congressional Quarterly in 2009 and listed for $355.00. It is an invaluable collection of entries accompanied by seven overview essays and a foreword by the late John Seigenthaler.
The set comprehensively examines the political, historical, and cultural significance and development of freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government.
→ The rights to the Encyclopedia have been purchased by Dean Ken Paulson of Middle Tennessee State University. Dean Paulson plans to update the two-volume set . . . and more. Stay tuned.
Call for Proposals: Freedom of Speech, 1550-1850
This from the Legal History Blog:
The George Washington Forum on American Ideas, Politics, and Institutions, which has its home at Ohio University, invites paper proposals for a conference and subsequent edited volume on the history of the freedom of speech, c. 1550–c.1850. The conference will be held at Ohio University in Athens, Ohio (April 7-8, 2017). Debora Shuger (UCLA), Ann Thomson (European University Institute), David Womersley (Oxford) and David Como (Stanford) will deliver plenary lectures.
This conference aims to promote academic discussion and to explore new research trends the history of freedom of speech. The conference organizers welcome the work of advanced doctoral students and both young and established scholars in the fields of history, intellectual history, law and literature and other fields in which the history of free speech is a topic of research.
Proposal–which should include a 500-word abstract, a brief curriculum vitae, and current contact information–should be sent by 23 December 2016, to the conference organizers.
Professor Jason Peacey, Department of History, University College, London (j.peacey@ucl.ac.uk)
Dr. Alex Barber, Department of History, Durham University (a.w.barber@durham.ac.uk)
Dr. Robert G. Ingram, Department of History, Ohio University (ingramr@ohio.edu)
Notifications will be sent by 6 January 2017.
Northwestern University Law Review Symposium
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New & Forthcoming Scholarly Articles
- Abner S. Greene, The Concept of the Speech Platform: Walker v. Texas Division, Alabama Law Review (2016)
- Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, Minnesota Law Review (2016)
- Aaron Smith, SLAPP Fight, Alabama Law Review (2016)
- Raphael Cohen-Almagor, Hate and Racist Speech in the United States: A Critique, Philosophy and Public Issues (2016)
- Katherine Rippey, Protecting One Artist’s Expression of Another Artist’s Work: An Analysis of the Intersection of the First Amendment & Copyright Law in Seltzer v. Green Day, Inc., First Amendment Law Review (2016)
- David S. Ardia, Court Transparency and the First Amendment, Cardozo Law Review (forthcoming 2017)
New & Notable Blog Posts from The Volokh Conspiracy
News, Editorials, Op-eds, Etcetera
→ Jonathan Zimmerman, Racism Was Served by Silence. Justice Requires Free Speech for All, Chronicle of Higher Education, December 13, 2016
→ Damon Root, Trump SCOTUS Contender Diane Sykes on the 1st Amendment Right to Record the Police, Reason.com, Dec. 9, 2016
→ Josh Nathan-Kazis, Anti-Semitism Bill Will Not Pass Congress This Year, The Forward, Dec. 9, 2016
- Adriana Cohen, School officials need refresher on First Amendment, Boston Herald, Dec. 14, 2016
- Anthony L. Fisher, Opposition to “offensive” speech on campuses will ultimately burn dissidents, Vox, Dec. 13, 2016
- Michael Linhorst, Does the First Amendment Require Release of Secret Surveillance Court Documents?, Lawfare, Dec. 13, 2016
- Michael Hiltzik, Trump’s attacks on free speech and the open Internet send a huge web archive fleeing to Canada, Baltimore Sun, Dec. 13, 2016
- Pete Ross, The Left Once Stood Against Injustice, Now They Stand Against Free Speech, Observer, Dec. 13, 2016
- Steve Byas, Texas AG: Banning Christmas Poster Violates First Amendment, The New American, Dec. 13, 2016
- Jennifer Kabbany, Washington State professors denounce ‘discourses of free speech’, The College Fix, Dec. 12, 2016 (see also Faculty open letter on bigotry, The Daily Evergreen, Dec. 9, 2016)
- Ron Paul, War on ‘Fake News’ Part of a War on Free Speech, The New American, Dec. 12, 2016
- A. Barton Hinkle, The War on Free Speech Escalates, Reason.com, Dec. 12, 2016
- Kyle Foley, Free Speech Battle Over Confederate Flag Rages in Pittsburgh, HeatStreet, Dec. 12, 2016
- Gene Policinski, First Amendment works — and will — if we still have it, Washington Times, Dec. 12, 2016
- Shontavia Johnson, Celebrity voices are powerful, but does the First Amendment let them say anything they want?, 2 WGRZ.com, Dec. 12, 2016
- Aric Mitchell, Hillary Clinton, Democrats Were ‘Bigger Threats to First Amendment, The Inquisitor, Dec. 11, 2016
- Gary Peck, Free speech: If not on campus, then where?, Las Vegas Review Journal, Dec. 10, 2016
- Amos N. Guiora, In this age of internet hate, it’s time to revisit limits on free speech, Salt Lake Tribune, Dec. 3, 2016
![Professor John Inazu]()
Professor John Inazu
YouTube
- John Inazu: Can We All Get Along? Confident Pluralism and the First Amendment, Constiutional Law Center, Stanford Law School (Dec. 9, 2016)
- Time Warner CEO says Democrats, not Trump, threatened First Amendment, Business Insider (Dec. 7, 2016)
- Megyn Kelly & Jonathan Turley, Flag Burning invites First Amendment debate, Fox News (Dec. 7, 2016)
- Animal Law Conference 2016: Animals and the First Amendment (Justin Marceau, Associate Professor, University of Denver, Sturm College of Law, Jim Oleske, Associate Professor of Law, Lewis & Clark Law School, and Miriann Sullivan, Columbia Law School, moderator)
The Court’s 2016-2017 First Amendment Free Expression Docket
Cert. Granted
- Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017)
- Lee v. Tam (oral argument: Jan. 18, 2017)
- Packingham v. North Carolina
Pending Petitions & Related Cases*
- Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Ap- peals have held such statutes unconstitutional.)
- Independence Institute v. FEC
- Bennie v. Munn
- Augsburg Confession
-
- Bondi v. Dana’s Railroad Supply
- Flytenow v. Federal Aviation Administration
Cert. Denied
- Armstrong v. Thompson
- Wolfson v. Concannon
- Dart v. Backpage.com
- NCAA v. O’Bannon
- Mech v. School Board of Palm Beach County
- Williams v. Coalition for Secular Government
- 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: Denied
- Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
→ The Court’s last Conference was on December 9, 2016. The next Conference is on January 6, 2017
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.
Next Scheduled FAN, #136: December 21, 2016
Last Scheduled FAN, #134: “Anti-Semitism Awareness Act” ignites First Amendment controversy
New & Forthcoming Books
→
“David Ogden, lawyer for the American Council of Life Insurers, argued in court that the rule would prevent simple sales pitches like, ‘Buy my product; it’s a good product; here’s what it will do for you.'”
We look to 2017 with a worried but hopeful eye. We are in a particularly difficult and precarious environment for free speech. Our troubled times remind us that our great country can only mend and move forward when Americans of good faith have open and honest dialogue. Through such discussions good ideas are spread and bad ideas are exposed. This is why speech is a core shared value of all Americans. Our mission in the coming year, as it has always been, will be to educate and advocate to preserve that one freedom that underpins all others.
“The act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful discriminatory conduct?”
“And now it’s getting interest in taking that approach to other schools, whose leaders may be tiring of giving in to student demands to censor and punish students, faculty and staff for their speech and nonthreatening behaviors.”
“Google is challenging a 2015 ruling by the British Columbia Court of Appeal that ordered it to stop indexing or referencing websites linked to a company called Datalink Technologies Gateways.”
Forthcoming Books
The Foundation for Individual Rights in Education has just 
“When Hulk Hogan faced off in court against the Web site Gawker, earlier this year, it was easy to become distracted by the rococo tawdriness of the spectacle. After all, the case centered on the leak of a surreptitiously videotaped sexual encounter between Hogan, the professional wrestler, and the wife of his erstwhile best friend, who is named Bubba the Love Sponge. The trial, which took place in St. Petersburg in March, laid out a sordid tale of betrayal and exposure, told mostly by Hogan, whose lavishly mustachioed visage remains one of the prominent faces of the sport of pro wrestling. . . . Even after the jury’s verdict—a gargantuan award of a hundred and forty million dollars, in Hogan’s favor—few saw the case as anything more than a bizarre outlier, of little relevance to anyone except its protagonists.”
“‘Journalists everywhere rely on such indemnification guarantees as a critical protection that allows them to engage in the sort of intrepid newsgathering and publishing that the First Amendment endorses,’ the amici wrote. ‘To eliminate them from the plan would not just harm the well-being of Gawker’s former employees; it also would send a chilling message to journalists everywhere that, in the event of a media company’s bankruptcy, what had heretofore been their employer’s liabilities could suddenly become their own.'”
The Bill of Rights in the 21st Century
New & Forthcoming Books
Over at 
Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court’s First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom.
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.
Chapter 3: 
The talk in the air is thick: Third Circuit Judge 
At FESC, scholars and practitioners discuss works-in-progress on the freedoms of speech, expression, press, association, petition, and assembly as well as on related issues of knowledge and information policy. FESC has become a fixture on the calendar of leading First Amendment thinkers and scholars nationwide. The paper titles and attendees from prior conferences are available here: 
Come this April 25, 2017 Yale University Press will release Floyd Abrams’ third and latest book, 
An explanation of how nonrepresentational art, instrumental music, and nonsense are protected by the First Amendment
“Students skeptical that eliminating ubiquitous dry-erase boards will solve bullying or vandalism”
Gavan Titley, et al., eds, 
As one turns the pages of this book, something of the marvelous freedom-affirming spirit of 
“Benton County Prosecuting Attorney Nathan Smith wrote in an email that prosecutors were “pleased” with Amazon’s decision.
Terri Halperin, 