FAN 55 (First Amendment News) Another Sign Case Comes to the Court

The “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.” — Justice John Paul Stevens, Kelo v. City of New London (2005)

The Court currently has a sign case before it, one that was argued on January 12th. That case is Reed v. Town of Gilbert. Now it has another one just presented to it: Central Radio Co., Inc. v. City of Norfolk. Here is how the petition opens:

“Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.”

The two issues presented to the Court are:

Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?
Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

B y a 2-1 margin, the Fourth Circuit Court of Appeals answered both of those questions “yes” and thus denied the First Amendment claim. Judge Barbara M. Keenan wrote the majority opinion which was joined in by Judge G. Steven Agee with Judge Roger Gregory dissenting in part.

Among other things, in her majority opinion Judge Keenan observed: “It is undisputed here that the plaintiffs’ 375-square-foot banner would comport with the City’s sign code if the banner were reduced to a size of 60 square feet. We recently have deemed such an alternative to be adequate upon comparable facts.’ And also this: “Even assuming, without deciding, that the City’s past refusal to enforce strictly the sign code constituted evidence of discriminatory effect, dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.”

Michael E. Bindas

Judge Gregory took exception to the majority’s content-discrimination analysis: “Why is it that the symbols and text of a government flag,” he argued, “do not affect aesthetics or traffic safety and escape regulation, whereas a picture of a flag does negatively affect these interests and must be subjected to size and location restrictions? I see no reason in such a distinction.” And also this: “This case implicates some of the most important values at the heart of our democracy: political speech challenging the government’s seizure of private property – exactly the kind of taking that our Fifth Amendment protects against. If a citizen cannot speak out against the king taking her land, I fear we abandon a core protection of our Constitution’s First Amendment. Here, Central Radio spoke out against the king and won.”

From Petitioner’s Brief

This Court’s review is needed to resolve a longstanding, deep division among the courts of appeals over an important and recurring question of First Amendment law: whether a sign code that, on its face, draws content-based distinctions is nevertheless content-neutral simply because the government disclaims a censorial motive or proffers a content- neutral justification for the code. That question has confounded the lower courts ever since this Court’s sharply fractured decision in Metromedia, Inc. v. City of San Diego (1981), failed to yield an answer. As early as 1994, then-Judge Alito noted this confusion and the need for “the Supreme Court [to] provide[] further guidance.” Rappa v. New Castle Cnty. (3d Cir. 1994) (Alito, J., concurring). Then-Professor Kagan similarly observed that this issue is “calling for acknowledgment by the Court and an effort to devise a uniform approach.” Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup. Ct. Rev. 29, 77 (1992).

If this Court resolves this issue in Reed v. Town of Gilbert and does so in a way that calls into question the Ninth Circuit’s approach to assessing content neutrality – the same approach the Fourth Circuit followed in this case – then an order granting certiorari, vacating the Fourth Circuit’s decision, and remanding this case will be warranted. If, on the other hand, this Court does not resolve the issue in Reed, it should grant certiorari to resolve it now.

→ Counsel for Petitioner: Michael E. Bindas

→ Randy Barnett, “Can a city suppress speech protesting eminent domain?,” Volokh Conspiracy, April 2, 2015

→ Press Conference re filing of lawsuit (May 10, 2012) (YouTube)

Howard Kurtz on “Intolerance”

Howard Kurtz

“The Indiana pizza uproar is still giving me indigestion. Just when gay rights advocates had won a victory by getting Mike Pence and the Indiana legislature to modify their religious freedom law, left-wing zealots harassed the poor folks at Memories Pizza into temporarily shutting down. . . .”

“[T]oo many on the left want to silence free speech or punish those whose beliefs are deemed unacceptable. You see this every time a campus protest forces a conservative speaker to cancel an appearance — and that should depress honest liberals who once fervently fought for free speech. . . .”

Howard Kurtz, “Age of intolerance: What the Indiana pizza attacks tell us about free speech,” Fox News, April 6, 2015

ACLU in the Red — $15M Annual Deficit for Past Five Fiscal Years

According to a news report filed by Catherine Ho for the Washington Post, the national ACLU has been running in the red for the past five fiscal years. Its “annual operating deficit averaged more than $15 million, and the organization has used reserves to fill the gap. ‘The operating deficit is the big challenge we tackled in our strategic planning meetings and in developing next year’s budget and we decided that we can’t keep relying on reserves at this level,'” the group’s executive director, Anthony Romero, is quoted as saying.

Long the leading champion of First Amendment rights, the group has suffered some major funding losses — e.g., the loss of a $22 million annual gift from a single donor. Even so, “[l]ast November, the ACLU received a $50 million grant from the Open Society Foundations, the network founded by investor and philanthropist George Soros, to aid in the Foundations’ campaign to reduce incarceration rates in the United States.”

But such new revenue sources apparently were not enough; last week the group “laid off 23 employees, about 7 percent of the organization’s national staff. The cuts affected employees in New York, D.C., California and Wyoming.”

→ See also Staci Zaretsky, “Nationwide Layoff Watch: Lawyers Swept Out For Spring Cleaning,” Above the Law, April 3, 2015

→ See March 26, 2015 e-mail from Anthony Romero to ACLU Staff re deficits and layoffs (ht: Above the Law)

Flashback: 63 years ago this day — “ACLU Files FCC Complaint Over Radio & TV Blacklisting,” Today in Civil Liberties History

Symposium on Book re Hate Speech & Liberal Democracy

Corey Brettschneider’s splendid new book, When the State Speaks, What Should it Say?, is a refreshing and magnificent reinterpretation of the application of First Amendment principles to speech by the government and to hate speech more generally. Professor Brettschneider’s book addresses an extremely difficult and important problem: How should a liberal society approach the topic of hate speech? Professor Brettschneider posits two dystopias that we need to avoid. The first is the dystopia of the Invasive State, which is so eager to militantly protect democracy that it regularly invades people’s rights. The second is the dystopia of the Hateful Society, which is so tolerant that it will not even intervene to defend its core norm of tolerance. Professor Brettschneider describes the harms inherent to each before proposing a new solution designed to occupy the ideological middle ground that protects both expression and the rights of citizens to be free and equal members of society. — Steven G. Calabresi

In case you (like me) missed it, the Brooklyn Law Review had a symposium on When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012), a book by Corey Brettschneider. Below is a list of the contributors and their articles:

Frank Michelman, “Legitimacy and Autonomy: Values of The Speaking State“
Steven G. Calabresi, “Freedom of Expression and the Golden Mean“
Andrew Koppelman, “Read more about Liberty, Equality, and State ResponsibilitiesYou’re All Individuals: Brettschneider on Free Speech“
Robin West, “Liberty, Equality, and State Responsibilities“
Josiah Ober, “Democratic Rhetoric: How Should the State Speak?“
Sarah Song, “The Liberal Tightrope: Brettschneider on Free Speech“
Corey Brettschneider, “Democratic Persuasion and Freedom of Speech: A Response to Four Critics & Two Allies“

Forthcoming Book on Free Speech & Political Persecution

Donna Haverty-Stacke, Trotskyists on Trial: Free Speech and Political Persecution Since the Age of FDR (New York University Press, Jan. 2016) (304 pp.) Here is the publisher’s blurb:

Passed in June 1940, the Smith Act was a peacetime anti-sedition law that marked a dramatic shift in the legal definition of free speech protection in America by criminalizing the advocacy of disloyalty to the government by force. It also criminalized the acts of printing, publishing, or distributing anything advocating such sedition and made it illegal to organize or belong to any association that did the same. It was first brought to trial in July 1941, when a federal grand jury in Minneapolis indicted twenty-nine Socialist Workers Party members, fifteen of whom also belonged to the militant Teamsters Local 544. Eighteen of the defendants were convicted of conspiring to overthrow the government. Examining the social, political, and legal history of the first Smith Act case, this book focuses on the tension between the nation’s cherished principle of free political expression and the demands of national security on the eve of America’s entry into World War II.

Based on newly declassified government documents and recently opened archival sources, Trotskyists on Trial explores the implications of the case for organized labor and civil liberties in wartime and postwar America. The central issue of how Americans have tolerated or suppressed dissent during moments of national crisis is not only important to our understanding of the past, but also remains a pressing concern in the post-9/11 world. This volume traces some of the implications of the compromise between rights and security that was made in the mid-twentieth century, offering historical context for some of the consequences of similar bargains struck today.

New & Forthcoming Scholarly Articles

→ Eugene Volokh, “Gruesome Speech” (forthcoming Cornell Law Review 2015)

James D. Nelson, “The Freedom of Business Association,” Columbia Law Review (2015)
Nancy Leong & Joanne Morando, “Communication in Cyberspace,” North Carolina Law Review (forthcoming 2015) (“[W]e provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying.”)
Alix Iris Cohen, “Nonconsensual Pornography and the First Amendment: A Case for a New Unprotected Category of Speech,” University of Miami Law Review (forthcoming 2015)
Sabrina D Niewialkouski, “Is Social Media the New Era’s ‘Water Cooler’? #Notifyouareagovernmentemployee,” University of Miami Law Review (forthcoming 2015)
“When Privacy Almost Won: Time, Inc. v. Hill (1967),” University of Pennsylvania Journal of Constitutional Law (forthcoming 2015)
Thaddeus Houston, “Constitutional Drag Race: Anonymous Online Speech after Digital Music News v. Superior Court,” Berkeley Technology Law Journal (forthcoming 2015)
Cass Sunstein, “Beyond Cheneyism and Snowdenism,” University of Chicago Law Review (forthcoming 2015)
Eva van der Zee, “Legal Limits on Food Labelling Law: Comparative Analysis of the EU and the USA,” European Business Law Review (forthcoming 2015)
Ravi Antani, “The Resistance of Memory: Could the European Union’s Right to be Forgotten Exist in the United States?,” Berkeley Tech. L.J. (forthcoming, 2015)

Justice Souter & Margaret Warner

Flashback: Former Supreme Court Justice David Souter on Citizens United

Former Supreme Court Justice David Souter sat down with Margaret Warner, speaking about how there are some laws that Congress can make that can limit the freedom of speech, and addressed the controversial Citizens United decision. The discussion took place in Concord, New Hampshire on September 14, 2012.

→ See YouTube video here (news story here)

New YouTube & Other Video & Audio Files

Yuki Noguchi, “A New Internet Domain: Extortion Or Free Speech?,” NPR, Morning Edition, April 7, 2015 (audio)
Lesley-Anne Stone, “Censorship & Persecution in Music,” YouTube, April 5, 2015,
“The Mount Rushmore of The Free Speech Outlaws,” ChannelPKtown, YouTube, April 4, 2015 (re comedians)
Josh Blackman, ““The 1st Amendmetn, 2nd Amendment, and 3D-Printed Guns,” Lecture, Creighton Law School, posted April 3, 2015 (audio)
“Colleges Teach 1st Amendment Suppression,” The Alex Jones Channel, InfoWars.com, April 1, 2015