FAN 60 (First Amendment News) — Mohammed-Cartoon Controversy Continues — Liberals Divided

We defend the First Amendment for everybody because there is no other way to defend it for ourselves. — Ira Glasser (December 1977)

Intolerance is a human tragedy and must be addressed. But if there’s one cardinal rule in America, it’s that we err on the side of counter-speech, not censorship, when we hear things we don’t like but that don’t directly hurt us. — Gabe Rottman (August 12, 2013)

It’s axiomatic: Give it enough time and any irksome First Amendment issue will resurrect, albeit in new cultural garb but similar enough to be more than a distant cousin. The Mohammed-cartoon controversy is only the latest example of an old issue remerging to once again test the steel of our commitment to free speech. And with a firebrand like Pamela Geller — the  who promoted the “Draw the Prophet” contest in Texas — fanning the flames, some find the need to back away from the speech-protective tradition of the First Amendment. Predictably, rationalizations are tendered and excuses offered while exaggerations are served up in bountiful plenty. Why? Simple: Whenever speech really offends us (particularly when the speaker is over-the-top provocative), there is a strong tendency to default to a censorial mindset. Then again, the true greatness of our First Amendment is our constitutional commitment to default in a different direction — to ratchet  towards freedom.

Frank Collin demonstrating in Chicago (1978)

You hear the words a lot these days in the news: hate speech / incendiary speech / fighting words / and much more as the battles lines draw around the Texas controversy. If you turn the free-speech clock back 38 years and situate the First Amendment in Illinois, you will soon enough discover a similar conflict with people throwing around similar epithets. Remember Skokie? Remember the Nazi campaign to march there, in that predominately Jewish community with many Holocaust survivors? (See YouTube clips here and here — see also here)

Before and after the matter was resolved in 5-4 in a per curiam opinion by the Supreme Court (with liberals siding with the claims of the National Sociality Party) and later in a cert. denial in 1978, there was considerable and heated debate among liberals. And nowhere was that debate more heated than in the ranks of the American Civil Liberties Union, which through its Illinois affiliate defended the First Amendment claims of Frank Collin — the lead party in the suit to permit the Nazis to march in Skokie.

The story of this contentious moment in our free-speech history is ably set out in Philippa Strum’s When the Nazis Came to Skokie: Freedom for Speech we Hate (1999). Part of that history is the enormous price the ACLU paid to defend the First Amendment even if it meant risking the group’s own financial survival. (In those days, the New York Times editorial board stood with the ACLU in its time  of peril.) Years later, that sacrifice came to be seen by many as a badge of honor. In some ways there was even a Shakespearean quality to the fight fought back then by the ACLU:

This day is call’d the feast of Crispian. He that outlives this day, and comes safe home,Will stand a tip-toe when this day is nam’d, And rouse him at the name of Crispian. He that shall live this day, and see old age, Will yearly on the vigil feast his neighbors  And say “To-morrow is Saint Crispian.”Then will he strip his sleeve and show his scars, And say “These wounds I had on Crispin’s day.”

National ACLU Weighs in on Cartoon Controversy

Lee Rowland

Meanwhile, a new fight emerges as liberals once again battle over how much free-speech freedom they can tolerate. Though up to now the national ACLU has not been very vocal on the cartoon controversy, when I inquired I received the following reply from Lee Rowland, the Staff Attorney for the Speech, Privacy & Technology Project: “I just wanted to let you know that the ACLU unequivocally believes that Ms. Geller and AFDI’s speech was protected, and that frankly, it’s not even a tough question. Our First Amendment protections mean nothing if they do not extend to speech that many find objectionable and provocative.”

The Draw-Mohammed–Cartoon Controversy — Seven Views

∇ Real Time with Bill Maher: In Defense of Free Speech (HBO): “This is America. Do we not have the right to draw whatever we want? . . . Do we have to accept that Muslims are unable to control themselves the way we would ask everyone else in the world?  To me that’s bigotry; that’s the soft bigotry of low expectations.”

Bret Stephens

∇ Bret Stephens, “In Defense of Pamela Geller,” Wall Street Journal, May 11, 2015: Ms. Geller is hammering home the point, whether wittingly or not, that the free speech most worth defending is the speech we agree with least. That’s especially important when the enemies of free speech—in this case, Muslim fanatics—are invoking the pretext of moral injury to inflict bodily harm. A society that rejects the notion of a heckler’s veto cannot accept the idea of a murderer’s veto simply because the murderer is prepared to go to greater extremes to silence his opponents.”

∇ Editorial, “Free Speech vs. Hate Speech,” NYT, May 6, 2015: “the Muhammad Art Exhibit and Contest in Garland, Tex., was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom.”

∇ Eugene Volokh, “No, there’s no ‘hate speech’ exception to the First Amendment,” Volokh Conspiracy, May 7, 2015: “there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.”

∇ Kathleen Parker, “Use and abuse of First Amendment,” Yakima Herald, May 10, 2015: “I take a back seat to no one when it comes to defending free speech — even that of the worst sorts. We let neo-Nazis and the Ku Klux Klan march and protest because the true test of free speech is that unpopular speech is tolerated.That said, we needn’t embrace or celebrate people like Geller, who intentionally try to provoke a confrontation.She’s welcome to sponsor a cartoon contest, but we don’t have to attend. If Geller wants to stand on street corners and shout her views, no one has to listen.”

∇ John Costa, “Testing the First Amendment,” The Bulletin, May 10, 2015: “The question for those of us who value the First Amendment is easy to state but painfully difficult to answer. Are there limits we should impose on ourselves?In fact, newspapers that have standards of publication do it every day, which I know doesn’t answer the question of whether to publish the images of Charlie Hebdo or the cartoonists in Texas. I wholly support their right to their choice, but for me the answer is a resounding, ‘It would depend.'”

∇ Stuart Anderson, “Have Mormons Become America’s Best Advocates For Freedom Of Speech?,” Forbes, May 7, 2015:”A worldwide debate has emerged over religion and freedom of speech. And who, by example, has become America’s best advocate for free speech? The surprising answer may be the Church of Jesus Christ of Latter-day Saints.”

Yale Law Professors see Blueprint for Campaign Reform in Williams-Yulee

Professor Bruce Ackerman

They’re reading the tea leaves: In an ingenious new article just published in The Atlantic,  Professors Bruce Ackerman & Ian Ayres see signs of liberal hope in Chief Justice John Roberts’s  Willaims-Yulee opinion. As they read that opinion, an argument can be made that would extend the logic of that opinion beyond judicial elections to the campaigns of other elected officials. Here are a few excerpts:

“If Congress embraces Roberts’s support for a ban on judges personally soliciting campaign contributions, and applies it to its own members, it can bring “dialing for dollars” to a decisive end. . . . If a future opinion upheld a Congressional ban, its reasoning would involve the straightforward application, not a radical extension, of Roberts’s basic rationale. Scalia’s dire predictions have often been vindicated by subsequent majority decisions—recall his passionate condemnations of the Court’s rulings on gender equality. A tightly crafted law might compel Roberts to recognize the extension of his logic to other elections, just as Scalia plainly fears. There is, in other words, now a clear blueprint for Congress to clean up its own act. . . .”

“A ban on personal solicitations would certainly generate litigation, but it would give the Supreme Court—including Roberts and Justice Kennedy—another chance to modify the confident assertions of Citizens United to fit the grim facts of political life in real-world America.”

→ Bruce Ackerman & Ian Ayres, “John Roberts’s Roadmap for Campaign-Finance Reform,” The Atlantic, May 7, 2015

More Due Process — Proposed Remedy: Abolish State Judicial Elections 

Professor Martin Redish

In light of the Court’s recent ruling in Williams-Yulee v. The Florida Bar, I thought this newly released article might be of interest to those concerned about ways of curbing the problems associated with campaigning for state judicial office.

Martin H. Redish & Jennifer Aronoff, “The Real Constitutional Problem With State Judicial Selection : Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism,” William & Mary Law Review (2015).

Abstract: In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support.

The Court’s focus on retrospective gratitude is simultaneously overinclusive and under-inclusive. It is overinclusive because it proves far too much: all judges—even federal judges protected by Article III—owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections.

This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge because this is the context in which the very real threat to decisional independence arises. A judge’s fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge’s independent assessment of the facts and law.

→ This Article argues that life tenure, or, at the very least, some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness, both of which lie at the core of the due process guarantee.

William Cohen

William Cohen: Noted Constitutional Scholar Dies

“William Cohen, the C. Wendell and Edith M. Carlsmith Professor of Law, Emeritus at Stanford Law School, died April 11 at age 81 after living with Parkinson’s disease for many years. . . Professor Cohen devoted more than five decades to the study and teaching of constitutional law. He wrote or co-wrote five books (some of which appeared in multiple editions), as well as dozens of articles and essays.” (Source here)

Some of Bill’s First Amendment writings included his casebook The First Amendment: Constitutional Protection of Expression and Conscience and the following law review articles:

• “A Look Back at Cohen v. California,” UCLA Law Review (1986)
• “A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?,” UCLA Law Review (1971)

New & Forthcoming Books

1. Professor Stephen Lichtman

   Anthony Maniscalco,  Public Spaces, Marketplaces, and the Constitution: Shopping Malls and the First Amendment (State University of New York Press, Jan. 1, 2016)

2. Helen Knowles & Stephen Lichtman, Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices (Palgrave Macmillan, Sept. 17, 2015)
3. David S. Shipler, Freedom of Speech: Mightier than the Sword (Knopf 2015) (review in NYT here and LA Times review here)
4. Kirsten Powers, The Silencing: How the Left Is Killing Free Speech (Regnery Publishing, 2015)

Focus of Forthcoming Article: Labor Picketing & the First Amendment

Professor Catherine Fisk

Catherine Fisk & Jessica Rutter, “Labor Protest Under the New First Amendment,” Berkeley Journal of Employment and Labor Law (forthcoming, 2015)

Abstract: Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union.

This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach.

All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.

Professor Heidi Kitrosser

New & Forthcoming Scholarly Articles

1. Heidi Kitrosser, “Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers,” William & Mary Law Review (forthcoming 2015)
2. Sande Buhai , “Lawyers and the First Amendment: Conflicts between Former Clients and Personal Speech,” University of Cincinnati Law Review (forthcoming 2015)
3. Mae Kuykendall, “Evaluating the Sociology of First Amendment Silence,” Hastings Constitutional Law Quarterly (forthcoming 2015)
4. Brent Ferguson, “Beyond Coordination:Defining Indirect Campaign Contributions for the Super PAC Era,” Hastings Constitutional Law Quarterly (2015)
5. Twana Hassan, “Critiques of the Pursuit of Truth as a Justificatory Theory of Free Speech,” SSRN (May 12, 2015)

Newly Posted YouTube Posts

1. Ted Cruz, “Free Speech Under Assault” (Senate floor: Sept. 9, 2014)
2. “The Evolution Of Censorship,” The Richest.com, May 10, 2015

Flashback 1990: Allen Ginsberg on Censorship (with young Corn-Revere taking notes) [updated]

→ “Who Decides What Is Indecent – Allen Ginsberg on Censorship, Obscenity Trial” (Washington, D.C., April 30, 1990) (YouTube, originally on C-SPAN)

The panelists were: (1) FCC Commissioner James Henry Quello, (2) Timothy Dyk, (3) Joseph Reilly, (4) Peggy Coleman, and (5) Allen Ginsberg. Tyrone Brown moderated.

AG reading portions of October 1, 1987, letter from David Salniker of Pacifica Radio to Allen Ginsberg: “. . . We believe the literary value of a poem will not be considered by the FCC. Pacifica in this climate cannot risk losing its license or even the costs of defending ourselves from . . . complaints. We must therefore, with great sadness, notify you that we are no longer free to air HOWL and many other standard classics of contemporary literature.”

Notable Blog Posts: Historical & Contemporary 

1. Ruthann Robson, “Second Circuit Upholds Admissibility of Rap Video and Tattoos Against First Amendment Challenge,” Constitutional Law Prof Blog, May 11, 2015
2. Ralph Young, “The World War I Anti-War Movement and The First Amendment,” Constitution Daily, May 11, 2015
3. Ruthann Robson, “District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice,” Constitutional Law Prof Blog, May 7, 2015

Campus Free Speech Watch

1. Carla Rivera, “Cal Poly Pomona student at center of free speech debate,” Los Angeles Times, May 13, 2015
2. Annie Knox, “Dixie State tosses free speech limits after students sue over Bush posters,” Salt Lake Tribune, May 13, 2015
3. S.E. Cupp, “Protect campus free speech — even when you loathe the message,” Daily News, May 13, 2015
4. Samantha Harris, “Speech Code of the Month: Lake Superior State University,” FIRE, May 11, 2015
5. Bonnie Snyder, “It’s Time for a New Free Speech Movement on Campus,” American Thinker, May 7, 2015

→ See also: Susan Kruth, “New Book by Kirsten Powers Examines Attacks on Open Discourse on College Campuses,” FIRE, May 12, 2015

Raging-Bitch Beer

New Op-eds, Commentaries, & Blog Posts

→ Sue Reisinger, “First Amendment Win for Brewery’s ‘Raging Bitch’ Beer,” Corporate Counsel, May 7, 2015

1. Victor Davis Hanson, “The First — and a Half — Amendment,” National Review, May 12, 2015
2. Eriq Gardner, “Warner Bros. Wins First Amendment Argument in Piracy Hunt,” Hollywood Reporter, May 11, 2015
3. John Wohlstetter, “Finding the First Amendment,” The American Spectator, May 11, 2015
4. Gene Policinski, “Will the ‘home of the brave’ still protect free speech?,” Pantagraph.com, May 10, 2015
5. Justin Lane, “Corporate ‘Free Speech’ Castrates the FDA,” Ring of Fire, May 10, 2015
6. John Boyle, “Suspension of Kite Runner smacks of censorship,” Citizen Times, May 9, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 5-10-15]

The next Conference is scheduled for May 14, 2015.

Cases Decided 

1. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

1. Elonis v. United States (argued on 12-1-14)
2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
3. Reed v. Town of Gilbert (argued on 1-12-15)
4. Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)

Pending Petitions*

1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
5. O’Keefe v. Chisholm (distributed for Conference of May 14, 2015)

Review Denied*

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

LAST SCHEDULED FAN POST, #59: “Williams-Yulee — The Ruling Few Expected . . . & the One Few Will Remember”

LAST FAN POST, #59.3: “Floyd Abrams & Yale Law School — Friendly Foes”

NEXT SCHEDULED FAN POST, #61: Wednesday, May 20, 2015