FAN 154 (First Amendment News) Oregon ACLU: Attempt to Quash Alt-Right Rallies Would Violate First Amendment

If the government has concrete evidence of an imminent threat they can and should address it, without restricting 1A rights of all. — Oregon ACLU 

 Our hearts are broken, but government censorship is not the answer. We must defend the constitution even when it is uncomfortable.— Mat dos Santos, Oregon ACLU Legal Director

Mayor Ted Wheeler

In the aftermath of a brutal anti-Muslim attack involving the slaying of two men and the serious injury of a third, Portalnd Mayor Ted Wheeler declared that “[o]ur city is in mourning, our community’s anger is real.” Because of that, Wheeler aksed  the federal government to revoke permits for two free speech rallies slated for next week by right-wing groups. The “timing and subject of these events can only exacerbate an already difficult situation,” he stressed. “I am calling on every elected leader in Oregon, every legal agency, every level of law enforcement to stand with me in preventing another tragedy,” he added. (Video of Mayor’s statement here.)

The Organizers 

According to KGW News in Portland, “Joey Gibson is organizing a rally on June 4 and has already received a permit for the event at Shrunk Plaza from the federal government, which controls the downtown park. A second rally is scheduled for June 10 but is not yet permitted.” Both were planned prior to the recent attack.

The event, billed as the “Trump Free Speech Rally,” is, according to its organizers, slated to consist of “speakers exercising their free speech, live music, flags, and an uplifting experience to bring back strength and courage to those who believe in freedom.Thank you Trump for all you have done.” (Video by Joey Gibson here re upcoming rallies.)

  Joey Gibson

The Mayor’s Statement

“‘My main concern is that they are coming to peddle a message of hatred and of bigotry,’ Wheeler told reporters, referring to organizers of the two rallies. ‘They have a First Amendment right to speak, but my pushback on that is that hate speech is not protected by the First Amendment to the United States Constitution.'” (Source: CNN)

Oregon ACLU Response

ACU’s Mat dos Santos

Enter the ACLU.  According to a story by Aaron Mesh writing in the Willamette Week, the “American Civil Liberties Union of Oregon says that Mayor Ted Wheeler’s efforts to keep far-right protesters from holding more rallies in Portland is an unconstitutional violation of the First Amendment.”

V.P. Pence on Campus Speech Codes

Last Sunday, Vice President Mike Pence delivered the commencement address at the University of Notre Dame.

As reported by FIRE’s  Adam Steinbaugh, “Pence’s address included an extended discussion of the state of freedom of expression on America’s college campuses.” Here are some exceprts from the Vice President’s remarks:

You know, if the emanations of free speech were charted on a map like infrared heat signatures, one would hope that universities would be the hottest places. Red and purple with dispute, not dark blue and white frozen into camped orthodoxy and intellectual stasis.

If such a map were to exist, Notre Dame would burn bright with the glow of vibrant discussion. This university is a vanguard of freedom of expression and the free exchange of ideas at a time, sadly, when free speech and civility are waning on campuses across America. [See here re FIRE’s free-speech rating of Notre Dame]

Notre Dame is a campus where deliberation is welcomed, where opposing views are debated, and where every speaker, no matter how unpopular or unfashionable, is afforded the right to air their views in the open for all to hear.

But Notre Dame is an exception, an island in a sea of conformity, so far spared from the noxious wave that seems to be rushing over much of academia. While this institution has maintained an atmosphere of civility and open debate, far too many campuses across America have become characterized by speech codes, safe zones, tone-policing, administration-sanctioned political correctness, all of which amounts to nothing less than suppression of the freedom of speech. 

These all-too-common practices are destructive of learning and the pursuit of knowledge, and they are wholly outside the American tradition. As you, our youth, are the future, and universities the bellwether of thought and culture, I would submit that the increasing intolerance and suppression of the time-honored tradition of free expression on our campuses jeopardizes the liberties of every American. This should not, and must not be met with silence.

Related

• Liam Stack, Notre Dame Students Walk Out of Mike Pence Commencement, New York Times, May 21, 2017
• Karin Agness Lips, Notre Dame Graduates Miss Pence’s Freedom Of Speech Lesson By Walking Out, Forbes, May 23, 2017

→ Greg Lukianoff on NPR re free speech on college campuses (audio here)

Headline: “Second Circuit Rejects First Amendment Claim of Law Firm to Accept Investment from NonLawyers”

Prof. Ruthann Robson

Over at the Constitutional Law Prof Blog, Professor Ruthann Robson writes about a recent Second Circuit opinion in Jacoby & Myers, LLP v. The Presiding Justices of the First, Second, Third & Fourth Depts (March 24th. 2nd Cir., 2017, per Carney, J.). Here is what Professor Robson wrote about the Jacoby case:

[T]he Second Circuit upheld the New York Rules of Professional Responsibility prohibitions of nonlawyers investing in law firms, rejecting the firm’s First Amendment challenges.  The law firm argued it had rights to associate, to access the courts, and to petition the courts.

“Writing for the panel, Judge Susan Carney noted that while cases such as NAACP v. Button (1963) ‘might casually be characterized as reflecting lawyers’ expressive rights in the causes they pursue—when those causes implicate expressive values,’ the Supreme Court has “never held, however, that attorneys have their own First Amendment right as attorneys to associate with current or potential clients, or their own right to petition the government for the redress of their clients’ grievances when the lawyers are acting as advocates for others, and not advocating for their own cause.”

Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers’ own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer’s generic act of pursuing litigation on behalf of any client.

“Of course attorneys have First Amendment rights regarding their professional advertising, but the court distinguished those precedents and further rejected the asserted rights to association, access to the courts, and to petition.  Moreover, the court found that even if such rights were to be recognized as asserted by the law firm, ‘the regulations are supported by a substantial government interest and impose an insubstantial burden on the exercise of any such First Amendment rights.”  Yet the court clearly stated that “rational basis review applies,’ and that the regulations ‘serve New York State’s well‐established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession.'”

“Affirming the district judge, the Second Circuit decision means that the law firm’s challenge has yet to  survive a motion to dismiss.  Yet this is most likely only the beginning of challenges to professional rules regarding lawyer and non-lawyer business relationships.”

9th Circuit holds no 1-A right to political public nudity

The case is Taub v. City & County of San Francisco (9th Cir., May 25, 2017, unpublished opinion).

Claims: (1) Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Francisco’s public nudity ordinance. (2) Plaintiffs’ claim that the public nudity ordinance constitutes an unlawful prior restraint also fails.

(credit: S.F. Examiner)

Held: (1)” [W]e hold that the challenged ordinance is a valid, content- neutral regulation as applied to Plaintiffs’ expressive conduct under United States v. O’Brien (1968). O’Brien is the applicable test here because the ordinance is aimed at ‘the conduct itself, rather than at the message conveyed by that conduct.'” The challenged ordinance satisfies each of the four O’Brien factors.” (2) “Assuming arguendo that Plaintiffs’ nudity at Bay to Breakers and the Haight Street Fair in 2014 was expressive conduct, Plaintiffs were issued citations after their allegedly expressive conduct had already occurred. See Alexander v. United States (1993). Moreover, the procedural requirements imposed on prior restraints do not apply to ‘a content-neutral permit scheme regulating speech in a public forum,’ Thomas v. Chicago Park District (2002), much less to a content-neutral ordinance aimed at conduct.”

→ See also: Eugene Volokh, No First Amendment right to political public nudity — even in San Francisco, The Volokh Conspiracy, May 26, 2017

→ Sam Whiting, Naked truth behind Gypsy Taub’s nude nuptials, S.F. Gate, December 16, 2013

Headline: “Judge Agrees Broadcasters Have First Amendment Right to Refuse Advertisements”

This from Eriq Gardner writing for the Hollywood Reporter: “SiriusXM has just scored a victory that also provides a lesson in this fraught political time where refusing to run an advertisement engenders cries of censorship. According to a California federal judge, not running an ad is an exercise in free speech.”

Judge David O. Carter (credit: Orange County Register)

“[Last] week, the satellite radio broadcaster got U.S. District Court judge David O. Carter to reject a lawsuit from InfoStream Group, which runs the dating sites WhatsYourPrice.com and SeekingMillionaire.com. In California federal court, InfoStream complained how SiriusXM stopped running ads for the websites. SiriusXM deemed the ads as falling short of a revised policy on standards and practices. InfoStream argued the broadcaster’s refusal was “pretextual,” one designed to garner favor from SiriusXM’s preferred customers.”

“In response to the lawsuit, SiriusXM brought a motion to strike the complaint pursuant to California’s anti-SLAPP statute, which was designed to curtail legal efforts chilling First Amendment activity. As a result, Carter had to examine whether a broadcaster’s decision to decline an advertisement was indeed protected activity. . . .”

“Precluding a broadcaster from refusing to sell airtime is inconsistent with the First Amendment protections enjoyed by private broadcasters,” [wrote Judge Carter]

“InfoStream argued that SiriusXM hadn’t identified any ‘speech,’ that it was really ‘conduct’ at issue. Specifically, InfoStream pointed to Sirius’ choice to not enter into additional contracts.”

[Judge] Carter responds that it doesn’t matter because InfoStream’s complaint arises from act in furtherance of SiriusXM’s right of free speech.”

“‘In any event, ‘speech results from what a speaker chooses to say and what he chooses not to say,’ writes the judge, who then quotes a prior case for the proposition that ‘the right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.'” . . .

→ Infostream Group, Inc. v. Sirius XM Radio (C. Dist., CA, May 22, 2017 per Carter, J.)

David Hudson joins FIRE

David Hudson

Robert Shibley, the Executive Director of the Foundation for Individual Rights in Education (FIRE), has just announced that David L. Hudson, Jr. joined FIRE effective June 1, 2017 as a Jackson Legal Fellow.

Hudson served with the Newseum’s First Amendment Center for many years, which is where I first got to know and work with him. He has also taught First Amendment law at Vanderbilt Law School. Hudson is the co-editor of the two-volume, 14,000-plus page, Encyclopedia of the First Amendment (2008).

Hudson is the author or editor of several books on free speech, constitutional law, American history, and even a book on boxing. He has also  published numerous articles, scholarly and popular.  His books include:

1. Editor, Freedom of Speech: Documents Decoded (May 31, 2017)
2. co-editor, Encyclopedia of the Fourth Amendment (2015)
3. The Handy History Answer Book (2013)
4. The First Amendment & Freedom of Speech (2012)
5. Let the Students Speak! A History of the Fight For Free Expression in American Schools (2011)
6. The Handy Law Answer Book (2010)
7. The Rehnquist Court: Understanding Its Impact and Legacy (2006)
8. The Fourteenth Amendment: Equal Protection Under the Law (2002)

Forthcoming Book

• Robert Spencer, The Complete Infidel’s Guide to Free Speech (and Its Enemies) (Regnery Publishing, July 24, 2017)

New & Forthcoming Scholarly Articles

• Michael J. Kelly & David Satola, The Right to Be Forgotten, University of Illinois Law Review (2017)

Prof. Michael J. Kelly

Abstract: The right to be forgotten refers to the ability of individuals to erase, limit, delink, delete or correct personal information on the Internet that is misleading, embarrassing, irrelevant or anachronistic. This legal right was cast into the spotlight by the European Court of Justice decision in the Google Spain case, confirming it as a matter of EU law. This “right,” however, has existed in many forms around the world, usually applying a balance-of-rights analysis between the right to privacy and the right to freedom of expression. The new European version, though, is based on a legal theory of intermediary liability where Internet search engines are now considered “data controllers,” and as such have liability for managing some content online. As it has evolved in Europe, this right has focused attention on key underlying policy considerations, as well as practical difficulties, in implementation under the new European regime. In particular, shifting the burden of creating compliance regimes and supervising important human rights from government to the private sector.

David Satola

Thus, in Europe, the function of balancing rights (privacy versus speech) in the digital context has been “outsourced” to the private sector. Recent experience in Europe under this regime shows that there is no uniform approach across countries. Moreover, different national approaches to the “right” make it almost impossible for multinational entities to comply across jurisdictions. Apart from the data controller threshold, civil-law jurisdictions seem to give greater weight to privacy concerns in striking this balance. Common-law jurisdictions tend to give greater weight to expression. The right to be forgotten is another example of an evolving transatlantic data struggle with potentially serious trade implications. This Article explores the historical and theoretical foundations of the right to be forgotten and assesses practical legal issues including whether North American “free speech” rights are an effective buffer to what is sometimes a very controversial and evolving issue.

• Doris Del Tosto Brogan, Expungement, Defamation and False Light: Is What Happened before What Really Happened or Is There a Chance for a Second Act in America?, Loyola University Chicago Law Journal (forthcoming 2017)

Abstract: Should an individual whose criminal record has been expunged have a cause of action for invasion of privacy, defamation or false light when a media outlet refuses to “unpublish” or correct the original report of her criminal charge? Outside of George Orwell’s world, can a fact that once existed be willed away by a court order, making the once-accurate report false, or “constructively false” and so give rise to a cause of action?

Prof. Doris DelTosto Brogan

The impact of being swept into the vortex of the criminal justice system, even if as the result of only a minor charge, and even if that charge is dismissed, will ricochet throughout an individual’s life doing untold damage. As Michelle Alexander described it, the consequences might include being discriminated against in employment, housing, education or lending. This derails any hope of rehabilitation and contributes to recidivism. In a society that has embraced “frictionless” sharing, and instantaneous dissemination of even the most inconsequential information, employers, lenders, and even nosey neighbors can easily access a criminal charge through public records or through a lingering media report. Even when the record has been expunged, or the charges dismissed, or the individual pardoned, the information remains, if not in the official record, in a wide range of published accounts. Given what appears to be an era of increasing faith in mass criminalization, and reliance on the prison-industrial complex as offering solutions to perceived societal problems, is there any hope of minimizing the damaging collateral consequences of a brush with the law? Is there a chance for a second act in America?

This article addresses the problems faced by individuals who have been harmed by the continued availability of media reports of criminal records that have been expunged, and explores possible remedies.

First, I briefly survey representative state expungement statutes, demonstrating that even the most robust expungement protocols do not accomplish their goal because it is simply impossible to erase the record of an arrest, charge or conviction. Indeed, sometimes expungement does more harm than good by deluding the expungee into relying on the fact that the record has been erased, only to have it discovered by a prospective employer, lender or other third party who then concludes the expungee is both an ex con and a liar.

I then consider whether it is possible to prevent access to criminal records or to control publication of such information in the first instance. I conclude that this is impossible because of important and appropriate constitutional guarantees protecting the right to access and the right to publish information concerning matters of public interest, which criminal proceedings surely are.

If it is not possible to prevent access to and publication of the information, can tort causes of action provide remedies, and perhaps caution restraint on those who would publish criminal records? Again the answer is no. Privacy claims are precluded by the public interest in criminal proceedings. Defamation and false light claims are foreclosed because the potential plaintiff cannot prove falsity. The Supreme Court would not condone undermining New York Times v. Sullivan by permitting the fiction of constructive falsity to meet this constitutionally required element. And because of the impact of the single publication rule, the notion of construing falsity from the effect of subsequent circumstances will not work. Falsity is the constitutional fulcrum for defamation and false light, and falsity cannot be proven.

Similar constitutional constraints foreclose the option of passing laws that would require media outlets to publish corrections or addendums explaining that the charges were dismissed or expunged or that the individual was pardoned. The Supreme Court has correctly concluded that government-forced speech violates the First Amendment.

Thus, the law offers no real solution, and this is as it should be. In light of this, I propose that media outlets adopt policies under which, in certain well-defined circumstances, they would voluntarily publish addendums explaining that the charge reported has been expunged or dismissed or the individual has been pardoned. Journalists do adhere to voluntary ethical guidelines. The modest policy I describe is based on guidelines already followed by some media outlets. It would be voluntary, and thus would not entangle the government in the editorial process. It would apply only to online outlets both because the ready availability of these reports make them the source of the greatest harm, and because the burden on an online outlet is minimal. Finally, this would be limited to verifiable expungements, dismissals or pardons, and so would not require independent investigation by the media outlets.

1. WHAT’S THAT SIGN SAY?: A BRIEF EXAMINATION OF THE FOUR OPINIONS IN REED V. TOWN OF GILBERT
2. THE FUTURE OF CYBERBULLYING LEGISLATION IN NORTH CAROLINA
3. THE TEACHER FOLLOWED ME HOME: BELL AND A SCHOOL’S CONTROL OF STUDENT SPEECH OUTSIDE THE CLASSROOM
4. EXPOSED: HOW MUGSHOTS EXPANDED GOVERNMENT SECRECY

→ See also Symposium: The First Amenmdent Legacy of Justice Antonin Scalia

News, Editorials, Op-eds & Blog Posts 

1. Alec Cowan, The University of Oregon’s year in free speech, Daily Emerald, May 28, 2017
2. Brendan Pringle, Conservative millennials are the Free Speech Movement’s only hope, Red Alert, May 28, 2017
3. Matthew Baan, Huffington Post Apparently Doesn’t Understand How The First Amendment Works, MEDIAite, May 26, 2017
4. Brandon Morse, Tucker Carlson verbally pummels atheist activist with the First Amendment, The Blaze, May 26, 2017
5. Rebecca Savransky, Sasse: Mont. Republican doesn’t understand First Amendment, The Hill, May 25, 2017
6.  Antonie Boessenkool, UCLA students say ‘free speech is under attack’ and a conservative professor is the target, Los Angeles Daily News, May 21, 2017

Today in First Amendment History 

Arthur Miller Testifying to House Subcommittee, June 21, 1956.(Bettmann/Corbis)

May 31, 1957: “The noted American playwright Arthur Miller had appeared before the House Committee on Un-American Activities (HUAC) on June 21, 1956, and refused to answer questions about his political affiliations on First Amendment grounds. Unlike many other HUAC witnesses, he claimed the right not to answer question under the First Amendment rather than the Fifth Amendment. It was a particularly courageous stand because, at that time, there was no established First Amendment protection against legislative inquiries into one’s political beliefs and associations. On this day, Miller was found guilty of contempt of Congress, denied a passpor,t and sentenced to a $500 fine or 30 days in jail. He never spent any time in jail, and his conviction was reversed on August 7, 1958.”

“Contempt of Congress indictments became a heavy weapon against alleged subversives during the Cold War. While it had rarely been used before World War II, HUAC issued 21 contempt citations in 1946, 14 in 1947, and 56 in 1950. All other House Committees in those years issued a total of only 6 contempt citations.”

“Miller had earlier written the play The Crucible (January 22, 1953), equating the anti-Communist hysteria of the Cold War with the infamous Salem Witch trials (see June 10, 1692). Miller’s play Death of a Salesman is widely regarded as one of the greatest American plays.” [Source: Today in Civil Liberties History]

The Court’s 2016-2017 First Amendment Free Expression Docket

Opinions Rendered 

1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (transcript here)
2. Lee v. Tam (transcript here)
3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

1. National Institute of Family and Life Advocates v. Becerra
2. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
3. Livingwell Medical Clinic, Inc. v. Becerra
4. Garcia v. Bloomberg
5. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
2. Independence Institute v. FEC (affirmed)

Cert. Denied

1. Mulligan v. Nichols
2. Alabama Democratic Conference v. Marshall
3. Augsburg Confession
4. Keefe v. Adams
5. Scott v. Georgia
6. Bondi v. Dana’s Railroad Supply
7. Bennie v. Munn
8. Flytenow v. Federal Aviation Administration
9. Armstrong v. Thompson
10. Wolfson v. Concannon
11. Dart v. Backpage.com
12. NCAA v. O’Bannon
13. Mech v. School Board of Palm Beach County
14. Williams v. Coalition for Secular Government 
15. 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 June 8, 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, #155: June 7, 2017

Last Scheduled FAN, # 153: POLICYed & Richard Epstein Bring Free-Speech Lessons to Digital Media