FAN 130 (First Amendment News) “Porn Panic” Prompts Pushback

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