[Earlier this month] a representative from the American Civil Liberties Union saw her chance to speak about the First Amendment squashed by students chagrined by the actions of her employer. — Virginia Gazette, Oct. 6, 2017 The website of the ACLU of Virginia contains a statement by Claire Guthrie Gastañaga, its Executive Director. That statement pertains to the recent controversy at William and Mary. Below are portions of that statement, including passages in red that were apparently contained in the original version but no longer exist in the current one.
Claire Guthrie Gastañaga
“The ACLU of Virginia was invited by the College of William & Mary Alma Mater Productions to speak to students on Sept. 27 about their First Amendment rights, and, particularly, their rights at protests and demonstrations. We were pleased to accept the invitation and looked forward to making the presentation and answering questions on a wide range of topics. We were disappointed that we didn’t get the chance to provide the information that the students asked us to present nor to answer the tough questions we expected the student organizers and audience members to ask. . . .”
“The ACLU of Virginia supports unequivocally the freedom of professors, students and administrators to teach, learn, discuss and debate or to express ideas, opinions or feelings in classroom, public or private discourse.”
“Disruption that prevents a speaker from speaking, and audience members from hearing the speaker, is not constitutionally protected speech even on a public college campus subject to the First Amendment; it is a classic example of a heckler’s veto, and, appropriately, can be prohibited by a college student code of conduct as it is at William and Mary. As a government entity, a public college like William and Mary has an obligation to protect the freedom of the speaker to speak and not to allow one group of people to shout down or seek to intimidate other speakers or members of the audience who wish to hear the speaker from exercising their own free speech rights. This is true regardless of what individuals or groups are speaking, protesting or counter-protesting.” [This passage survives in a blog post by Sam Harris.] “The ACLU of Virginia has been and will continue to be unwavering in its commitment to campus free speech. We are equally committed to ensuring that all universities take appropriate steps to ensure that the environment on their campuses fosters tolerance and mutual respect among members of the campus community, and an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. . . . ” “What happened at William and Mary on Sept. 27 is a part of a larger national trend that is challenging campus leaders across the country to find the right formula for assuring that critical community conversations can take place in a culture of inquiry consistent with a true learning environment. Actions that bully, intimidate or disrupt must not be without consequences in any such formula.” [This passage survives in an Inside Higher Ed story by Jeremy Bauer-Wolf. Though that story contained a link to the passage in red quoted above, the contents of that link have apparently been changed since it no longer contains the lines quoted above.]
Bill Farrar of the VA ACLU
Deleted passages: By all accounts, the passages in red were contained in an earlier version of the ACLU’s statement but do not appear in the current version.
VA ACLU Responds: When asked about the above, Bill Farrar, Director of Strategic Communications, responded: “We revised our statement based on internal feeedback from our colleagues.” He agreed that the deleted passages no longer reflect the Virginia ACLU’s current position. When asked if the National ACLU was consulted, Mr. Farrar said it was not.
Hecklers shout down California attorney general
This from Adam Steinbaugh over at FIRE: “Last week, Whittier College — my alma mater — hosted California’s Attorney General, Xavier Becerra, in a question-and-answer session organized by Ian Calderon, the Majority Leader of the California State Assembly.”
“They tried to, anyway. The event ended early after pro-Trump hecklers, upset about Becerra’s lawsuit against the Trump administration over DACA, continuously shouted slogans and insults at Becerra and Calderon. A group affiliated with the hecklers later boasted that the speakers were ‘SHOUTED DOWN BY FED-UP CALIFORNIANS” and that the “meeting became so raucous that it ended about a half hour early.'”
“The event, held in Whittier College’s Shannon Center theater, was free and open to members of the community, and featured introductions from both Whittier’s president and student body president. Becerra and Calderon were to have an hour-long question-and-answer session using audience questions randomly selected from a basket. As soon as they began the discussion, however, hecklers decked in ‘Make America Great Again’ hats began a continuous and persistent chorus of boos, slogans, and insults.”
“Video captured by an alumnus captures the difficulty of hearing the discussion”:
“Video uploaded by two of the hecklers, Arthur C. Schaper and Harim Uzziel, captures the entirety of the affair, complete with chanted slogans and insults, such as ‘lock him up,’ ‘build that wall,’ ‘obey the law,’ ‘respect our president,’ ‘Americans first,’ and ‘You must respect our president!’ It also captures audience members repeatedly asking the hecklers to stop, and campus security officials approaching the group. Another video posted by “We the People Rising” also captured much of the disruption”:
“Calderon asked the audience to hold applause or booing, remarking: ‘It’s important that we have a productive conversation here.’ Becerra said that he thought the First Amendment to be a “precious thing,” but said he doubted the audience could hear him speak. The event, scheduled for an hour, concluded after about 34 minutes.”
“Schaper, a conservative columnist, is known for leading disruptions targeting Democratic officials, and was recently charged with disrupting a public meeting. For example, he disrupted a congresswoman’s ‘Know Your Rights’ forum, intended to give information to undocumented immigrants. ‘It was offensive,’ Schaper told the San Gabriel Valley Tribune. ‘[The congresswoman] took an oath to uphold [the] Constitution, and now she’s sponsoring a town hall that teaches illegal aliens about rights they don’t have.’ . . . “
Coming Soon: The First Amendment in the Regulatory State — Research Roundtable 
Adam J. White (Director of the Center for the Study of the Administrative State)
Program (invitation only)
- 8:15 – 8:45 am: Breakfast
- 8:45 – 9:00 am: Welcome and Introductions — Adam White, Director, Center for the Study of the Administrative State and Adjunct Professor, Antonin Scalia Law School, George Mason University
- 9:00 – 10:15 am: Commercial Speech and the Regulatory State — Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law
- 10:15 – 10:30 am: Break
- 10:30 – 11:45 am: FCC: TCPA and Free Speech — Justin (Gus) Hurwitz, Assistant Professor of Law, and Co-Director of Space, Cyber, and Telecom Law Program, Nebraska College of Law
- 11:45 – 12:45 pm: Lunch & Keynote: Katie Biber Chen, General Counsel, Thumbtack
- 12:45 – 2:00 pm: Online Defamation & Takedown Orders — Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
- 2:00 – 2:15 pm: Break
- 2:15 – 3:30 pm: Why Administrative Agencies Systematically Neglect the First Amendment — David Bernstein, Professor of Law, Antonin Scalia Law School, George
- 3:30 pm: Adjourn
Participants
- Jonathan H. Adler, Director, Center for Business Law and Regulation and Johan Verheij Memorial Professor of Law, Case Western Reserve University, School of Law
- David Bernstein, Professor of Law, Antonin Scalia Law School, George Mason University
- Josh Blackman, Associate Professor of Law, South Texas College of Law Houston
- Ashutosh Bhagwat, Martin Luther King, Jr. Professor of Law, UC Davis School of Law
- Babette E. Boliek, Associate Dean for Research and Faculty Development and Associate Professor of Law, Pepperdine University, School of Law
- Katie Biber Chen, General Counsel, Thumbtack
- Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington, School of Law
- C. Wallace DeWitt, Counsel to Commissioner Michael S. Piwowar, U.S. Securities and Exchange Commission
- Laura Donohue, Professor of Law, Georgetown University Law Center
- Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service, Chapman University, Fowler School of Law
- Sheldon Gilbert, Director of Judicial Engagement,Institute for Justice
- Justin (Gus) Hurwitz, Assistant Professor of Law, and Co-Director of Space, Cyber, and Telecom Law Program, Nebraska College of Law
- R. Shep Melnick, Thomas P. O’Neill, Jr. Professor of American Politics, Boston College, Morrissey College of Arts and Sciences
- Derek Muller, Associate Professor of Law, Pepperdine University School of Law; and Visiting Professor of Law, University of Iowa College of Law
- David Post, Professor of Law (retired), Temple University’s Beasley School of Law
- Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law
- Jason Torchinsky, Partner, Holtzman Vogel Josefiak Torchinsky PLLC
- Rebecca Tushnet, Frank Stanton Professor of First Amendment Law, Harvard Law School
- Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
- Adam White, Director, Center for the Study of the Administrative State and Adjunct Professor, Antonin Scalia Law School, George Mason University
State lawmaker seeks to license journalists → This from Tony Cook writing for the Indianapolis Star: “An Indiana lawmaker’s proposal to license journalists in his state is getting a cold reception from members of his own party. But that is not deterring the man behind the proposal, state Rep. Jim Lucas, a Republican from Seymour, Ind. Instead, he is doubling down with another, broader proposal to license several other constitutional rights in Indiana, including religious expression, speech and the right to vote. Lucas had the measures drafted to prove a point about an Indiana law that requires a license to carry a handgun, a law he has worked to repeal for years. . . .” → Related: Eugene Volokh, FCC chairman rejects possibility (raised by Trump) of revoking broadcasters’ licenses for supposed ‘Fake News’, The Volokh Conspiracy, Oct. 17, 2017 New & Forthcoming Scholarly Articles
- Hannah Bloch-Wehba, Exposing Secret Searches: A First Amendment Right of Access to Electronic Surveillance Orders, Washington Law Review (forthcoming 2017)
- JoAnne Sweeny, Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine, Nevada Law Journal (2017)
New & Notable Blog Posts
- Eugene Volokh, Can public high school student be kicked off cheerleading for using vulgarity off-campus?, The Volokh Conspiracy, Oct. 17, 2017
- Ruthann Robson, Ninth Circuit Denies En Banc Review for Berkeley Ordinance Requiring Cell Phone Retail Disclosures, Constitutional Law Prof Blog, Oct. 11, 2017
Prof. Ruthann Robson
“In an Order of denial of en banc review in CTIA- The Wireless Ass’n v. City of Berkeley, a concurring opinion by the original majority judges and a dissenting opinion demonstrate the continuing controversies surrounding the constitutionality of compelled commercial speech.” “Recall that the original panel opinion in April upheld the constitutionality of Berkeley’s mandated notice to purchasers of cell phones regarding exposure to RF radiation. The First Amendment issue was the controversial choice of standards in compelled disclosure in a commercial context: is the correct standard the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)? A majority of the panel, affirming the district judge, held that Zauderer applied. . . .” “In the denial of rehearing and the denial of en banc review, the original panel judges in the majority, Fletcher and Christen,wrote briefly to rearticulate their views. While they stated their panel opinion “largely speaks for itself,” they stressed that their opinion was consistent with other circuits. . . .” News, Editorials, Op-eds & Blog Posts
- Erik Wemple, Trump forces FCC chairman to declare loyalty to First Amendment, Washington Post, Oct. 17, 2017 (op-ed)
- Controversial Speaker Causes Florida Governor to Declare State of Emergency, First Amendment Watch, Oct. 16, 2017
- Jenna Ellis, Trump is not threatening the First Amendment; Americans’ ignorance of what it means most definitely is, Fox News, Oct. 16, 2017
- David Loy, How Trump’s Threats Against the NFL Could Violate the First Amendment, ACLU blog, Oct. 13, 2017
- Trevor Timm, Trump’s threats amount to a First Amendment violation, Columbia Journalism Review, Oct. 12, 2017
- Ilya Shapiro & Frank Garrison, Supreme Court Takes on Public-Sector Unions, National Review, Oct. 10, 2017
So to Speak Podcast: ‘Is this the day the Internet dies?’ This from FIRE’s podcast: “The experts are calling it the free speech debate of the next decade: Who makes the rules for what people can say — and see — on the web? And who pays the price when “The Delete Squad” gets it wrong?” “On today’s episode of So to Speak: The Free Speech Podcast, FIRE’s Alex Morey talks to experts on all sides of the issue, from the Facebook team working to keep the social network uncensored — but also safe — for users, to directors at Electronic Frontier Foundation and the Committee to Protect Journalists, and more.” “When one entity can unilaterally censor billions of users at the push of a button, what does it mean for the future of the internet? ‘Is this the day the Internet dies?'” YouTube
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Floyd Abrams at the Robert H. Jackson Center (Oct. 10, 2017)
Today in First Amendment History
- Oct. 18, 1962, The Connection Banned in NYC, Today in Civil Liberties History
“The film version of Jack Gelber’s play The Connection was banned in New York City on grounds of obscenity. However, it was announced on this day that the film would be screened the next night at the Judson Memorial Church in Greenwich Village. The Connection is a powerful drama about drug addiction, in which the cast of both the stage play and the film include recovering addicts. The language is exactly what you would expect from a group of junkies waiting for their ‘connection’ to arrive.” “The film includes the great jazz alto sax player Jackie McLean, who had had a problem with drugs. The Judson Memorial Church was the center of much political activism in New York City. The film was directed by Shirley Clarke, who directed several other independent and highly acclaimed films.” → Watch the trailer for The Connection
2017-2018 Term: First Amendment Free Expression Cases
Cert. Granted
- Janus v. American Federation of State, Municipal and County Employees
- Masterpiece Cakeshop v. Colorado Civil Rights Commission
Pending: Cert. Petitions
- Minnesota Voters Alliance v. Mansky
- Shepard v. Florida Judicial Qualifications Commission
- Tobinick v. Novella
- Lozman v. City of Riviera Beach, Florida
- Harris v. Cooper
- National Institute of Family and Life Advocates v. Becerra
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
Cert. Denied
Free-Speech Related Cases: Cert. Granted
- Carpenter v. United States (Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Denied
- MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
→ Next Court Conference, Oct. 27, 2017 NEXT SCHEDULED FAN #167 — October 25, 2017 LAST SCHEDULED FAN #165: Major New First Amendment News, Analysis & History Website Launched