The Twenty-Fifth Annual Ira C. Rothgerber, Jr. Conference is sponsored by Colorado Law’s Byron R. White Center for the Study of American Constitutional Law. The annual event seeks to explore a broad range of issues related to law and lies. 
This year’s conference takes place on Friday, April 14 from 8:15 a.m. – 3:00 p.m. and is titled “Truth, Lies and the Constitution.” The event will be moderated by Professor Helen Norton.
Panel I: Lies, Law, and Public Policy
- “Sex, Lies, and Ultrasound” — Jessie Hill, Case Western Reserve University School of Law
- “Falsehoods and the Press” – Helen Norton, University of Colorado School of Law
- “Too Incredible to be Believed” — Catherine Ross, George Washington University Law School
- “Climate Change Denial, Citizen Competence and the First Amendment” — James Weinstein, Arizona State University Sandra Day O’Connor College of Law
Panel II: Deception, Hypocrisy, and the Constitution
- “The Lie of the Supremacy Clause and the Dakota Access Pipeline” — Carla Fredericks, University of Colorado School of Law
- “Truth, Lies, and the Confrontation Clause” — Mark Spottswood, Florida State University College of Law
- “Free Speech Hypocrisy: Campus Speech, Engagement and the Sub-legal First Amendment” — Christina Wells, University of Missouri School of Law
Panel III: The Diversity of Lies (and Other Forms of Deception): Legal Theory and Doctrine
- “Material Benefits, Cognizable Harms and the Scope of the Constitutional Protection for Lies” — Alan Chen & Justin Marceau, University of Denver Sturm College of Law
- “Categorizing Lies” — David Han, Pepperdine University School of Law
- “The Law of Deception: A Research Agenda” – Gregory Klass, Georgetown Law
→ For more information, please go here.
Look up, look around — ACLU launches multilingual ad campaign
If you find yourself in Times Square between now and June, look up. You may catch a glimpse of the First Amendment — in Spanish, English, and Arabic.
The national ACLU has just launched a “Multilingual Ad Campaign in Defense of First Amendment.” Here are some excerpts from the group’s press release:
“The American Civil Liberties Union launched a campaign today to remind the public about its First Amendment rights and to reassure immigrants that they too are protected by the Constitution.”
“The campaign kicked off with the unveiling of electronic billboards featuring the First Amendment in Arabic, English, and Spanish in New York’s Times Square and at bus stops in Washington, D.C. The First Amendment in all three languages will also be displayed on a fence in the Williamsburg neighborhood of Brooklyn, and on a wall in the arts district of downtown Los Angeles. Additional ads may appear in other cities and in other languages in the coming days and weeks.”
“‘This campaign is intended to remind people that the Constitution is for all of us. It doesn’t matter who you are or what language you speak. ‘We the People’ means everyone,’ said Anthony D. Romero, executive director of the ACLU.”
“The idea for the campaign came about shortly after Donald Trump was elected president on a wave of anti-immigrant sentiment and a pledge to ban Muslims from entering the United States. It was conceived of by the agency Emergence Creative, who approached the ACLU with the idea in December 2016.”
“In addition to protecting freedom of speech, freedom of the press, and freedom to peaceably protest, the First Amendment protects the right to practice your religion and not be discriminated against for doing so. . . .”
“Several advertising vendors refused to run the campaign. Representatives who handle advertising space for New York’s Metropolitan Transit Authority and Washington D.C.’s Metropolitan Area Transit Authority declined, saying they did ‘not accept issue oriented advertising.’ However, the vendors who did offer space did so at a substantial discount in part because they wanted to support the effort.”
“The First Amendment ads will run in Times Square through June, appearing twice an hour for 15 seconds on the electronic billboard at Reuters Digital Tower, 3 Times Square. The ads in Washington D.C. will appear on 30 bus shelters across the city for four weeks. . . .”
SCOTUSblog: Wedding cake case petition lingers
This from Amy Howe over at SCOTUSblog: “The justices have now considered the petition for review in Masterpiece Cakeshop v. Colorado Civil Rights Commission at five consecutive conferences without acting on it. The custom-cake business owned by Jack Phillips, who describes himself as a “cake artist,” argues that Colorado’s public accommodations law violates the First Amendment by requiring Phillips to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs [and free-speech rights]. As is their practice, the justices have not explained why they have not yet ruled on Phillips’ petition. The electronic docket for the case has not yet been updated, but if – as expected – the case is once again scheduled for consideration at the justices’ next conference, on April 13, we could hear something on Monday, April 17.”
President Trump & the First Amendment
- Judge to Trump: No protection for speech inciting violence, Associated Press, April 1, 2017 (opinion here)
- Ruthann Robson, United States District Judge Refuses to Dismiss Complaint Against Trump on First Amendment Grounds, Constitutional Law Prof Blog, April 2, 2017
- Adam Liptak, Can Trump Change Libel Laws?, New York Times, March 30, 2017
- Madeline Conway, In Twitter attack on New York Times, Trump floats changing libel laws, Politico, March 30, 2017
- Lincoln Caplan, How the First Amendment Applies to Trump’s Presidency, The New Yorker, March 21, 2017
- Geoffrey Stone, Will Obama Sue Trump For Libel?, Huffington Post, March 8, 2017
→ Flashback: Hadas Gold, Donald Trump: We’re going to ‘open up’ libel laws, Politico, Feb. 26, 2017
→ Forthcoming: Mollie Ziegler, Trump vs. the Media (Encounter Broadside, No. 51, April 18, 2017)↓
Abstract: “How bad is the problem of media bias? The answer can be summed up in a few words: President Donald J. Trump. Whether you love or hate him, there’s no question that Trump gained a huge amount of support for his willingness to criticize the media in harsh and unsparing terms. Yet, the media seem baffled by the fact they’ve lost the trust of the American people. They have responded by being extraordinarily defensive and doubling down on even more histrionic attacks. However, the American system has always depended on a strong and trusted media to hold those in power accountable. Journalist Mollie Hemingway looks at the impressive list of media failure that led us to this unique moment and asks: Is it possible for the media to recover their credibility before it’s too late?”
Judge Kozinski on the First Amendment & Trump’s Travel Ban
The case is Washington v. Trump (9th Cir., March 17, 2017). Taking exception to the 9th Circuit’s ruling on Trump’s first travel ban, Judge Alex Kozinski maintained that it would chill free speech if a court were to rely on President Trump’s campaign statements in rendering a ruling on the travel ban. Judges Bbybee, Callahan, Bea and Ikuta joined in Kozinski’s dissent from the denial of reconsideration en banc. Below are the excerpts from the Kozinski dissent that discussed his free speech arguments.
Judge Alex Kozinski
“Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected. No Supreme Court case—indeed no case anywhere that I am aware of—sweeps so widely in probing politicians for unconstitutional motives. And why stop with the campaign? Personal histories, public and private, can become a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day.This path is strewn with danger. It will chill campaign speech, despite the fact that our most basic free speech principles have their ‘fullest and most urgent application precisely to the conduct of campaigns for political office.’ McCutcheon v. Fed. Election Comm’n (2014). And it will mire us in a swamp of unworkable litigation. Eager research assistants can discover much in the archives, and those findings will be dumped on us with no sense of how to weigh them. Does a Meet the Press interview cancel out an appearance on Face the Nation? Does a year-old presidential proclamation equal three recent statements from the cabinet? What is the appropriate place of an overzealous senior thesis or a poorly selected yearbook quote?”
“Weighing these imponderables is precisely the kind of ‘judicial psychoanalysis’ that the Supreme Court has told us to avoid. McCreary County v. ACLU of Ky. (2005). The hopelessness of this weighing exercise is why the Supreme Court has never “deferred to comments made by [government] officials to the media.” Hamdan v. Rumsfeld (2006). And it’s why the panel’s case citations for the supposedly ‘well established’ proposition that the President’s informal statements are admissible, upon closer inspection, turn out to refer to a much more limited universe: the text of city council resolutions, early drafts of legislation, transcripts of legislative discussions and contemporaneous statements by legislative members. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Larson v. Valente (1982); Vill. of Arlington Heights v. Metro Housing Dev. Corp. (1977). Limiting the evidentiary universe to activities undertaken while crafting an official policy makes for a manageable, sensible inquiry. But the panel has approved open season on anything a politician or his staff may have said, so long as a lawyer can argue with a straight face that it signals an unsavory motive.”
“Even if a politician’s past statements were utterly clear and consistent, using them to yield a specific constitutional violation would suggest an absurd result—namely, that the policies of an elected official can be forever held hostage by the unguarded declarations of a candidate. If a court were to find that campaign skeletons prevented an official from pursuing otherwise constitutional policies, what could he do to cure the defect? Could he stand up and recant it all (‘just kidding!’) and try again? Or would we also need a court to police the sincerity of that mea culpa—piercing into the public official’s ‘heart of hearts’ to divine whether he really changed his mind, just as the Supreme Court has warned us not to? See McCreary.”[citations omitted]
See also:
- Richard Hasen, Does the First Amendment Protect Trump’s Travel Ban?, Slate, March 20, 2017
- Roger Parloff, Judges’ Late Travel-Ban Dissent May Preview Supreme Court Approach, New York Magazine, March 24, 2017
Eleventh Circuit: First Amendment protects right to label skim milk as “skim milk”
This from Walter Olson over at Overlawyered:
“Florida law allows the sale of skim milk without vitamin A and D fortification but requires that it be sold under the name ‘imitation milk product.’ Ochiltree Creamery, a business that views the addition of other than natural ingredients as contrary to its mission, was willing to put warnings on its all-natural skim milk alerting buyers to the absence of vitamin fortification, but resisted the law’s demand that it label the product something other than ‘skim milk.’ The Eleventh Circuit ruled that the state had not met its burden under the First Amendment.”
→ Ocheesee Creamery v. Putnam (11th Cir., March 20, 2017)
→ Eugene Volokh, OK to call skim milk ‘skim milk’, The Volokh Conspiracy, March 21, 2017
House Judiciary Committee holds hearing on free speech on campus
David L. Hudson
Yesterday, the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on the topic of First Amendment Protections on Public College and University Campuses. The hearing was chaired by Congressman Steve King. Congressman Jamie Raskin was among those on the Committee.
Those testifying were:
- Stanley Kurtz
- Greg Lukianoff (testimony here)
- David L. Hudson, Jr.
- Matthew Kacsmaryk
→ The video of the hearing can be found here.
→ The Alliance Defending Freedom also submitted written testimony to the subcommittee for inclusion in the record.
Q&A with Floyd Abrams
- Michael Judge, Q&A: Floyd Abrams on the battle for the soul of the First Amendment, Columbia Journalism Review, Feb. 28, 2017
Abrams: “I don’t think we’ve had anyone who ran for the presidency in a manner which suggested the level of hostility to the press than did Donald Trump. And we certainly haven’t had any president who has made as a central element of his presentation while in office a critique of such venom and threat as we’ve heard in the last month. Now, we don’t know how much is talk and what if anything he may do as president apart from the impact of his words. That in and of itself is important. Any effort to delegitimize the press as a whole and any recitation of statements such the one just a few days ago, saying that the press “is the enemy of the American people,” itself raises serious issues even if he never took any legal steps against the press. . . .”
→ Related: First Amendment Salon (today at Floyd Abrams Institute, Yale Law School): Adam Liptak interviews Floyd Abrams.
Joan Bertin to step down as director of NCAC
Joan Bertin has been a stalwart and tenacious defender of free expression for over two decades. The free speech community will not be the same without her leadership, and at a time we need all the advocacy we can muster. — Robert Corn-Revere
Joan Bertin
After 20 years as the executive director of the National Coalition Against Censorship, Joan Bertin will step down from her role as the group’s head. She will continue to serve on the NCAC’s board and will likewise continue to advise the group.
“It was not an easy decision even then,” she said, “but I have decided not to rethink it. I am proud of the accomplishments NCAC has made over the last 20 years, and I know that I leave it in good hands. As the country rediscovers the critical importance of free expression, this may be an ideal opportunity to attract new talent to the organization and the cause.”
Joan Bertin has been a tireless, articulate, and effective champion for freedom of speech. I first had the pleasure of meeting and working with Joan many years ago when she was a terrific lawyer at the ACLU Women’s Rights Project. Her expertise and commitments concerning both gender equality and free speech have been mutually reinforcing; she has powerfully shown that we cannot have either one without the other. — Nadine Strossen
If you would know the measure of the woman, and to echo Nadine’s words, consider, among other things, Joan’s public comments before the Committee of the Judiciary’s Subcomittee on the Constitution and Civil Justice (June, 2, 2015):
By threatening free speech rights, [the Department of Education Office of Civil Rights’] approach endangers the cause of equality as much as free speech. The civil rights movement, and every other movement to expand equality rights, has succeeded precisely because advocates vigorously exercised their First Amendment rights to protest, demonstrate, petition government, and speak freely, even to those to whom their message was unpopular, controversial, and often deeply offensive. To undermine that critical right is to put at risk the very equality goals the Commission and OCR seek to promote.
Those who have worked with Joan (this writer included) know that she has been steadfast in her commitment to our free-speech freedoms, no matter what the ideological divide. These days that is a good way to become unpopular with friends and popular with foes. No matter. Joan has held true to convictions, and we are all the better for it.
So to you, Joan, we raise our glasses in gratitude — meanwhile, fight on!
Lemley & Volokh on alternative forms of reality
Mark Lemley (credit: Jason Doiy)
Professors Mark Lemley and Eugene Volokh have a new article entitled “Law, Virtual Reality, and Augmented Reality.” The article will appear in the University of Pennsylvania Law Review. Below is an abstract of that article:
Virtual Reality (VR) and Augmented Reality (AR) are going to be big — not just for gaming but for work, for social life, and for evaluating and buying real-world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:
(1) How might the law treat “street crimes” in VR and AR — behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-help (which will offer an attractive alternative protection to users, but also a further excuse for real-world police departments not to get involved).
(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?
(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?
(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?
(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech-conduct distinction?
→ See also Eugene Volokh, Tort lawsuits against VR/AR companies when users physically injure outsiders, The Volokh Conspiracy, March 31, 2017
News & Commentaries on Expressions Hair Design case
- Ruthann Robson, SCOTUS Rules First Amendment Applies to New York’s Credit Card Surcharge Statute, Constitutional Law Prof Blog, March 29, 2017
- Eugene Volokh, Restrictions on how businesses label credit card/cash price differences are speech restrictions, The Volokh Conspiracy, March 29, 2017
- Daniel Fisher, Cash Price Or Credit? Supreme Court Says That Might Be First Amendment Question, Forbes, March 29, 2017
- Cristian Farias, Supreme Court Says New York Is Regulating Speech But Refuses To Say If That’s Bad, Huffimgton Post, March 29, 2017
- Ronald Mann, Opinion analysis: Justices offer minimalist decision on New York credit-card surcharge statute, SCOTUSblog, March 30, 2017
- Ilya Shapiro & Frank Garrison, An Important but LimitedVictory for Free Speech, Cato at Liberty, April 1, 2017
→ See also: Cortelyou Kenney & Amy Kapczynski, The Supreme Court Avoids a Broad Ruling on Free Speech in Expressions Hair Design, Balkinization, March 31, 2017↓
“First, the Court was careful to note that not all laws regulating the communication of information are subject to First Amendment scrutiny, preserving the “speech” and “conduct” distinction. . . .”
“Second, because the merchant’s dropped their facial challenge to the New York law and only pursued an “as applied” challenge, the Court analyzed the statute only with regard to the specific behavior the petitioners sought to pursue—stating that their price for products was X plus Y for a credit surcharge. . . .”
“Fourth, and perhaps most interestingly, Justice Breyer’s concurrence picks up a theme from CRIT’s brief: the ubiquity of ‘speech.’ Justice Breyer reasoned that all economic regulations necessarily regulate ‘speech’ to some extent, so that whether a law regulates ‘speech’ or ‘conduct’ is not the relevant question. Instead, the question to ask is whether the subject regulated by the law implicates First Amendment protections for the content of speech. . . .”
New Blog Posts
- Eugene Volokh, Indiana: Ban on broadcasting trials doesn’t bar live-tweeting, The Volokh Conspiracy, April 3, 2017
- Eugene Volokh, Court overturns probation condition limiting use of devices that contain ‘any encryption … software’, The Volokh Conspiracy, March 31, 2017
- Steven Schwinn, D.C. Circuit Rejects Media Claim to Guantanamo Force-Feeding Tapes, Constitutional LawProf blog, Macrh 31, 2017
- Eugene Volokh, Libel takedown injunctions and fake notarizations, The Volokh Conspiracy, March 30, 2017
Nine New & Forthcoming Books
- Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, March 27, 2017)
- Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (Oxford University Press, April 4, 2017)
- Committee to Protect Journalists, Attacks on the Press: The New Face of Censorship (Bloomberg Press, April 24, 2017)
- Floyd Abrams, The Soul of the First Amendment (Yale University Press, April 25, 2017)
- Martin Gitlin, When Is Free Speech Hate Speech? (Greenhaven Press, August 15, 2017)
- Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, September 7, 2017)
- Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, September 12, 2017)
- John Palfrey, Safe Spaces, Brave Spaces: Diversity and Free Expression in Education (MIT Press, Sept. 22, 2017)
- Gavan Titley et al, editors, After Charlie Hebdo: Politics, Media and Free Speech (Zed Books, November 15, 2017)
Book Review
Terri Halperin, Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Acts of 1798, and the Campaign Against Dissent, American Journal of Legal History (March 2017)
“In Press and Speech under Assault, Wendell Bird examines the history of freedom and speech and the press from the perspective of the first Supreme Court Justices. He challenges the conventional narrative of the Alien and Sedition Acts of 1798 that Americans, including the first Justices, accepted the common law definition of freedom of press and speech – freedom from prior restraint only. Bird upends this narrative by looking at the development of the common law and tracing the Justices’ views in their non-Supreme Court writings. He finds that the common law definition of sedition was relatively new and that all of the early Supreme Court Justices “expressed broad and unrestricted views of freedoms of press and speech before [1798] . . . .'”
H.L. Menkin
90 years ago today: H.L. Menkin arrested in on obscenity charges
“On April 5, 1926, reporter and literary critic H.L. Mencken was arrested on Boston Common for selling a magazine that had been banned by the New England Watch and Ward Society, the city’s self-appointed moral censors. A fierce defender of free speech, Mencken had traveled to Boston with the express intention of getting himself arrested. The minute he sold a copy of the magazine, the vice squad took him into custody. Not everyone in Boston agreed with the Watch and Ward Society, and the next day a judge ruled in Mencken’s favor. He was acquitted on all charges. The victory was short-lived, however. Boston continued to lead the nation in the banning of books for another 30 years. . . .” (Source: The American Mercury)
The Court’s 2016-2017 First Amendment Free Expression Docket
Opinions Rendered
- Expressions Hair Design v. Schneiderman (opinion here)
Cert. Granted
- Expressions Hair Design v. Schneiderman (transcript here)
- Lee v. Tam (transcript here)
- Packingham v. North Carolina (transcript here)
Pending Appeals & Petitions & Related Cases*
- Keefe v. Adams
- Augsburg Confession
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (SCOTUSblog commentary)
Summary Disposition
- Independence Institute v. FEC (affirmed)
Cert. Denied
- Scott v. Georgia
- Bondi v. Dana’s Railroad Supply
- Bennie v. Munn
- Flytenow v. Federal Aviation Administration
- 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 Cases: Review denied
- 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: Review 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)
Speech & Debate Clause: Pending
- Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).
Freedom of Information Act Petition: Pending
- Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)
→ The Court’s next Conference is on April 13, 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, #147: April 12, 2017
Last Scheduled FAN, #145: David Cole: “Does anyone believe that the ‘free marketplace of ideas’ is functioning?”