FAN 155 (First Amendment News) “The Past, Present and Future of Free Speech”— Journal of Law and Policy posts First Amendment Symposium

Professor Joel Gora

When it comes to First Amendment symposia, Brooklyn Law School seems to be the go-to-venue, at least judging from the latest issue of the Law School’s Jounral of Law and Policy. The symposium was done under the watchful eye of Professor Joel Gora, who authored the Introduction — The Past, Present and Future of Free Speech. In that introuction Gora writes:

The contents of the symposium are set out below.

In a June 6, 2017 letter to President Donald Trump, lawyers for the Knigth First Institute at Columbia University called on the President to unblock their clients’ accounts.  The Institute represents two Twitter users who while using @RealDonaldTrump were blocked after they posted tweets critical of Trump.

Below are some excerpts from the Institute’s letter, which was signed by Jameel Jaffer, Katie Fallow and Alex Abodo:

Accordingly, the Institite called on President Trump or his aides to “immediately unclock our clients’ accounts and the accounts of others who have been blocked because of their views.”

Professor Volokh Responds

→ Eugene Volokh, Is @RealDonaldTrump violating the First Amendment by blocking some Twitter users?, The Volokh Conspiracy, June 6, 2017

Did the President violate the Institite’s clients’ First Amendment rights?  “I think that’s not quite so,” replied Eugene Volokh, “though the matter is not open and shut.”

Here, in abreviated form, is why Professor Volokh says so by way of his “tentative thinking on the matter”:

1. “[M]y inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views — apparently in his own words and with his own typos — rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment. And I think that’s so even if he gets some help from government-employed staff in running it.”
2. “But what if I’m mistaken, and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment? . . . But even if he reads a few of his notifications, there’s no First Amendment problem with his refusing to read those that come from particular people. Speakers ‘have no constitutional right to force the government to listen to their views.'”
3. ” Another effect is that the blocked users can’t follow @RealDonaldTrump, and can’t view or search his messages while logged on. But all they need to do is log off and go to http://twitter.com/RealDonaldTrump, and they’ll see them all. I do think that the First Amendment bans viewpoint-based interference with people’s ability to acquire information and not just with their ability to convey it . . . .”
4. “If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.”

Invitation

I have invited Jameel Jaffer to respond to Professor Volokh’s critique and will happily post his reponse.

Espionage Act tapped to prosecute intelligence contractor

Reality Leigh Winner

This from Charles Savage writing in the New York Times: “An intelligence contractor was charged with sending a classified report about Russia’s interference in the 2016 election to the news media, the Justice Department announced Monday, the first criminal leak case under President Trump.”

“The case showed the department’s willingness to crack down on leaks, as Mr. Trump has called for in complaining that they are undermining his administration. His grievances have contributed to a sometimes tense relationship with the intelligence agencies he now oversees.”

“The Justice Department announced the case against the contractor, Reality Leigh Winner, 25, about an hour after the national-security news outlet The Intercept published the apparent document, a May 5 intelligence report from the National Security Agency. . . .”

“It was not immediately clear who is serving as the defense lawyer for Ms. Winner, who has been charged under the Espionage Act.”

Related

→ Erik Wemple, Did the Intercept bungle the NSA leak?, Washington Post, June 6, 2017

Coming Next Week: Special FAN post re 100th Anniversary of Espionage Act 

Next Thursday, June 15th, I will post a special issue of FAN to mark the 100th anniversary of the Espionage Act of 1917. The following individuals will offer comments on the Act and its possible use in modern times:

1. Derek Bambauer
2. Bruce Brown
3. Erwin Chemerinsky
4. Geoffrey Stone, and
5. Stephen Vladeck

→  The post will also contain a package of resource materails prepared by Jackie Farmer and Robert Shibley who oversee, with me, FIRE’s online First Amendment Library.

Jeffrey Herbst

“Free speech faces many challenges at colleges and universities these days, but none greater than the growing skepticism of some students — especially those who feel particularly marginalized and disempowered in our society. Vocal elements of these groups increasingly question what the Supreme Court has celebrated as the country’s profound commitment to “uninhibited, robust and wide-open” public discourse.”

So write Jeffrey Herbst and Geoffrey Stone in an article appearing in the Chronicle of Higher Education. Later on, they add:

Professor Geoffery Stone

“Wanting to censor those whose views one finds odious and offensive is understandable. Actually silencing them is dangerous, though, because censorship is a two-way street. It is an illusion for minority groups to believe that they can censor the speech of others today without having their own expression muzzled tomorrow.”

“Although censoring others may appear to be a courageous sign of strength,” they stress, “it is actually an indication of weakness. Those who resort to censorship do so in no small part because they lack confidence that they can compete effectively with the ideas of their opposition. Allowing others to speak and then challenging them in a forthright and open manner with more persuasive ideas is the way to win in the long-term. It was for this reason that Dr. King in the speech later known as ‘I’ve Been to the Mountaintop’ said, ‘We aren’t engaged in any negative protest and in any negative arguments with anybody.’ Rather, he said, ‘we are going on.’ . . .”

Abrams big draw in NYC 

Dan & Floyd Abrams

This past Monday, some 900 people came out to the Temple Emanu-El Streicker Center to hear Floyd Abrams speak about his latest book, The Soul of the First Amendment.

There were traces of familial magic in the air as his daughter, Judge Ronnie Abrams, introduced the event with his son, Dan Abrams, interviewing their father.

It was an enagaging interview — with Father Abrams being both nuanced and witty — followed by questions from the audience. Here are a few excerpts:

On government leaks

• When  asked about his views on the the Trump Justice Deartment’s prosececution of an intelligence contractor charged with violating the Espionage Act for leaking a classified report, Abrams prefacced his reamrks by noting that “[m]ore prosecutions of leakers occurred under Presidents Obama than all our presidents altogether.” That said, he added that certain government leakers might be seen as “patriots” even though they might “be legally prosecuted.”
• Re Edward Snowden: “He provided a genuine public service in revealing the degree of surveillance that existed in this country.” But Snowden’s disclosures on our gathering of surveillance abroad “was wrong and ought not be admired; it is worthy of condemnation.”
• Re Julian Assange:,”I wouldn’t be surprised if he were prosecuted by the Trump Administration. . . . .  Taken as a whole, he has done more harm than he good. Even so, a prosecution of him under the Espionage Act would be very dangerous for the press and the public, and I certainly hope it does not occur.”

On President Trump & the Media

Abrams & Karen Gantz

President Trump seems “unwilling to accept the role of the press as a check on government power.”

On Kathy Griffin (in response to a question from the audience)

What she did was “really disgraceful and shameful.” That said, Abrams nonetheless hoped that would not be the end of her career. “I don’t think we should have capital punishment for entertainers who go over the line from time to time, though we can criticize them.”

→ Afterwards, Karen Gantz, Abrams’ literary agent, hosted a party at her nearby home. Among others, Vince Blasi, Stephen Solomon, and Henry Hoberman were there as glasses were raised in the author’s honor.

Scholarship — Carherine Fisk: “Is it Time for a Free Speech Fight?” 

• Catherine Fisk, Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor, Berkeley Journal of Employment and Labor Law (forthcoming 2018). Here is the Abstract:

The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments.

Professor Catherine Fisk

First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement.

Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a FirstAmendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940.

Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Today in First Amendment History: Cohen v. California (1971) 

• June 7, 1971:  “Fuck the Draft” Ruled Protected Speech

“In the case of Cohen v. California, Robert Paul Cohen had been convicted of walking through the Los Angeles County Courthouse, on April 26, 1968, with the words “Fuck the Draft” on the back of his jacket as an anti-Vietnam War protest. The Supreme Court on this day overturned the conviction as a violation of freedom of speech. Justice John Marshall Harlan, II’s opinion is notable for the weight he gave to the emotional aspects of the speech in question as just as important as in communicating the speaker’s message.”

Justice Harlan: “This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance…The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity . . . Much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.”

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. Harris v. Cooper 
2. National Institute of Family and Life Advocates v. Becerra
3. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
4. Livingwell Medical Clinic, Inc. v. Becerra
5. Garcia v. Bloomberg
6. 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, #156: June 14, 2017

Last Scheduled FAN, #154: Oregon ACLU: Attempt to Quash Alt-Right Rallies Would Violate First Amendment