A decision from this Court in favor of Masterpiece would require reasoning that would be readily deployed to trample the rights of the most vulnerable people in our society by excusing discrimination based upon race, national origin, or any other protected category, and would roll back the substantial strides this country has made in eradicating discrimination in our public life and economy. This Court should not open a new avenue for discrimination by commercial businesses—one that is inconsistent with this Court’s precedents and the principle that states may protect equal access to publicly available goods and services for all its residents.
So states the amicus brief filed by the NAACP and other civil rights groups in Masterpiece Cakeshop v. Colorado Civil Rights Commission. What began as a religious rights case, and then into a free speech case, may well turn into a civil rights race case and more. Simply consider the opening lines of the brief filed by the Lawyers’ Committee for Civil Rights Under Law, Asian American Legal Defense and Education Fund, Center for Constitutional Rights, Color of Change, The Leadership Conference on Civil and Human Rights, National Action Network, National Association for the Advancement of Colored People, National Urban League, and the Southern Poverty Law Center:
“[P]etitioners’ proposed free speech exception to anti-discrimination public accommodation laws could decimate those laws’ critical protections for African Americans, including the growing number of African Americans who identify as lesbian, gay, bisexual, transgender (LGBT), and other minority populations that have been subjected to a history of discrimination.”
“Despite the advances our country has made in eradicating segregation and other forms of invidious discrimination, African Americans, including LGBT African Americans who experience discrimination at the intersection of race and sexual orientation or gender identity, continue to suffer from structural and pervasive discrimination, as evidenced by the recent increase in hate crimes across the country. Discrimination infects the marketplace as well, where minority consumers continue to receive worse treatment and experience disparate access to goods and services as a result of business owners’ biased attitudes. Today, public accommodation laws remain vital by providing relief when consumers experience discrimination.”
The sumamry of the argument closes with the following: “Public accommodation laws strengthen our country by ensuring our economy is an inclusive one where all people regardless of background, identity, or belief can participate free of discrimination. This Court must see Masterpiece’s arguments for what they are—a request for permission to lawfully discriminate against minorities. Business owners’ religious and speech interests must not trump the rights of disenfranchised individuals to be free from discrimination. Masterpiece’s proposed exception to public accommodation laws would potentially apply to any business and would gut this Court’s well-established precedent and nullify long standing state, federal, and local public accommodation laws, causing a dramatic rollback of hard-won civil rights protections. . . .”
Ilana H. Eisenstein (counsel of record)
“The unprecedented carve-outs proposed by Masterpiece and the federal government could apply well beyond the wedding context to other businesses that are also arguably engaged in expressive activities, such as culinary arts, interior design and architecture rms, fashion boutiques, beauty salons, and barber shops, who would prefer not to associate with racial, ethnic, or other underrepresented minorities. And even beyond artistic commercial enterprises, a free-speech exception could potentially exempt a broad range of businesses that claim free-speech objections from serving particular customer groups.”
→ The counsel of record in the case is Ilana H. Eisenstein. From 2014 through 2017, Ms. Eisenstein served as an Assistant to the Solicitor General, U.S. Department of Justice. In that capacity, she prepared government petitions and briefs for filing in the Supreme Court, and advised the Solicitor General regarding federal appellate litigation. She has argued five cases and briefed over 75 others in the high Court.
Knight First Amendment Institute: Digital Rights, Federal Courts, and First Amendment Experts Endorse Suit against President Trump’s Twitter Blocking
NEW YORK (November 7, 2017) – The Electronic Frontier Foundation, a group of First Amendment scholars, and a group of federal courts scholars filed amicus briefs yesterday in support of a lawsuit filed by the Knight First Amendment Institute at Columbia University contending that President Trump violated the Constitution by blocking seven people from his Twitter account because of their viewpoints. The three amicus briefs support the Knight Institute’s Friday evening filing in the lawsuit, in which the Institute argued that the president’s Twitter account is subject to the First Amendment and the court has the authority to stop the president and his aides from violating First Amendment rights.
EFF’s amicus brief contends that social media platforms — and government officials’ social media accounts in particular — play a significant role in democratic discourse and the democratic process, and therefore must be regulated by the First Amendment. Social media is also used to communicate vital public safety information, and punishing someone by denying them access can have dire consequences. Read the brief and a summary of the arguments.
“Governmental use of social media platforms to communicate to and with the public, and allow the public to communicate with each other, is pervasive. It is seen all across the country, at every level of government. It is now the rule of democratic engagement, not the exception,” said EFF Civil Liberties Director David Greene. “The First Amendment prohibits the exclusion of individuals from these forums based on their viewpoint. President Trump’s blocking of people on Twitter because he doesn’t like their views infringes on their right to receive public messages from government and participate in the democratic process.”
Prof. Stephen Vladeck
A group of eight federal-courts scholars joined an amicus brief prepared by Brian Burgess and Andrew Kim of Goodwin Proctor with Professor Steve Vladeck of the University of Texas Law School. The brief contends that the court has the authority to enjoin the president for his official conduct, and that the ruling in the case Mississippi v. Johnson does not prohibit the court from doing so, in light of more recent Supreme Court cases. Read the brief.
“Our brief offers a modest contribution by highlighting how, contrary to the government’s argument, federal courts can — and periodically do — issue coercive relief directly against a sitting president,” said Vladeck. “The government relies for the contrary view on language taken out of context from a 150-year-old Supreme Court decision, but as we demonstrate, that language, even read for all it’s worth, has been overtaken by subsequent events — and for good reason.”
Prof. Joshua Geltzer
The final amicus brief was filed by Georgetown Law Center’s Institute for Constitutional Advocacy and Protection on behalf of seven First Amendment scholars, including Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe. ICAP’s brief argues that, by fostering a dialogue on @realDonaldTrump that includes official statements of government policy, responses by other Twitter users, and replies by the president to those responses, the president has created a digital-age public forum under the First Amendment, which prohibits viewpoint discrimination such as blocking critics. Read the brief and a summary of the arguments.
“This case is about applying established First Amendment principles to emerging technologies,” said ICAP’s Executive Director and Visiting Professor of Law Joshua Geltzer. “When the government creates a space for public discussion and debate, whether in a physical or virtual setting, it creates a public forum. The Constitution then bars the government from silencing those who question it and giving voice only to those who praise it.”
→ For more information, go here.
→ Related: Adam Liptak, Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers, New York Times, Nov. 6, 2017
Controversy over Lenny Bruce play heats up at Brandeis University
Brandeis University poster for 2016 program on Lenny Bruce
Following a flood of complaints, Brandeis University has scrapped plans for the performance of a controversial play on its campus accused of being critical of the Black Lives Matter movement. — The College Fix, Nov. 1, 2017
Michael Weller told Boston public radio station WBUR-FM that he was “personally heartbroken” over the decision and called the handling of his play by the university department “dangerous and corrosive.” — Playbill, Nov. 7, 2017
The Comedian & the University: The papers and audio files of Lenny Bruce, the ribald comedian who changed the face of American comedy, are housed at Brandeis University (his obscenity trial transcripts are available on FIRE’s online First Amendment Library). The Lenny Bruce Collection came to Brandies in 2014 thanks to a grant from the Hugh M. Hefner Foundation. In late October of 2016, Brandeis held a symposium to mark the occasion with Kitty Bruce (the comedian’s daughter), Christie Henfner (CEO of Playboy Enterprises and former Brandeis University Trustee), and Lewis Black (the famed comedian) as featured speakers.
Assumption of the Risk: Of course, by agreeing to house the Lenny Bruce papers and recordings, Brandeis University necessarily assumed the risk that comes with such a responsibility — i.e., the propsect of offending some people.
Playright Michael Weller
Were the faculty and administration of Brandeis University prepared to assumed that risk? That question came to the forefront when the playright Michael Weller attempted to show a Lenny Bruce play (“Buyer Beware”) at Brandeis, his alma mater.
The Plot’s the Thing (from The Brandeis Hoot): “Sitting outside a dorm, the main character, Ron, repeats what he hears on his MP3 as he listens to audio recordings of Lenny Bruce, a white stand-up comedian who drew national attention in the 1950s and 60s for his obscenity-laced performances and unyielding commitment to free speech. Ron found the audio in the Lenny Bruce archives in the Brandeis library. The supposed quote contains eight uses of the n-word and four other slurs which are also repeated.
“‘Imagine if we just kept saying these words over and over again, sooner or later they’d become meaningless noise,’ says Ron quoting Bruce, in between chains of slurs. A black student overhears Ron’s quotation of Lenny Bruce and then takes to Facebook to express himself.”
“Ron plans a comedy routine in the style of Lenny Bruce but does not intend to use Bruce’s exact language. The Brandeis administration threatens him with academic probation in hopes he will cancel his performance so that student protests do not fall on the same night that a wealthy alum, who has criticized student protests including Ford Hall 2015, visits campus.”
“At the climax of the play Ron performs and students protest. . . . In the play, his comedy performance is a direct challenge to the Brandeis administration. ‘If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?’ he says.”
The Controversy
This from Sopan Deb at the New York Times: “Brandeis University canceled an upcoming play about the comedian Lenny Bruce after some students and faculty expressed outrage about its content, the school announced on Monday.”
“The play, called “Buyer Beware,” was written by Michael Weller, an alumnus of the school and a playwright with a body of work that includes 1971’s “Moonchildren.” “Buyer Beware” was supposed to go on stage this month, but according to a statement from Brandeis, faculty started raising objections last summer.”
“Theater faculty members, the statement said, ‘felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming.’ . . .”
→ More from The Brandeis Hoot: “Rather than put on a performance of ‘Buyer Beware,’ the School of Creative Arts will offer a course in the spring ‘devoted to the challenging issues Michael’s work evokes.'”
Brandeis University’s statement related to the Creative Arts Award and ‘Buyer Beware’
“In January, Brandeis University will proudly present Michael Weller ’65 with the Creative Arts Award to celebrate his significant body of work, which includes more than 40 works for the theater, including “Moonchildren” and “Loose Ends,” and such films as “Ragtime” and “Hair.” Mr. Weller will add this award to an already impressive list of honors, including an Academy Award nomination, an NAACP Outstanding Contribution Award and a Drama Desk Award.”
“Last year, Mr. Weller was hosted by the theater department on campus, where he conducted research in the Lenny Bruce archives and engaged with students, faculty, administration, staff and maintenance personnel. He drew on this research to draft a script for a new play titled “Buyer Beware,” named after Lenny Bruce’s celebrated recording. Originally, the play was part of the theater department’s performance schedule for this November.”
“After receiving a draft script of ‘Buyer Beware’ in early July, theater faculty members considered the challenging issues it raised. They felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming. In early September, Mr. Weller and faculty discussed possible dates in February for the production of the play. Mr. Weller was also informed about the creative arts faculty’s decision to design a team-taught course around the play and other provocative works of art in the spring semester, which would accompany the production of the play. However, it was the playwright’s sense, in his own words, “that rehearsals of the play, and growing sentiment among some students in the theater department, might not be conducive to the creative atmosphere desired for a premiere presentation of a new work,” and so Mr. Weller made the decision to produce it elsewhere in a professional venue, rather than at Brandeis.
“While the play will not be performed on campus because of Mr. Weller’s decision to produce it professionally elsewhere, a course will be offered this spring and is currently being designed by faculty. It will allow Brandeis faculty to do what they do best — engage in rigorous educational work — by devoting a full semester to analyzing and openly discussing provocative works of art that may cause discomfort, including the legacy of Lenny Bruce. The course will explore a broad range of artistic genres, including visual art, theater, film, music and literature, with the help of experts and visiting artists as well as Brandeis faculty. . . .”
“The university will be honored to celebrate Mr. Weller’s artistic achievements at the Creative Arts Award ceremony on January 23rd.”
Knight First Amendment Institute Posts Exchanges on “Who Pays for the First Amendment?’”
The Knight First Amendment Institute has launched an “Emerging Threats” series of papers about new challenges to freedoms of speech and press. Following the first installment in that series comes another entitled “From the Heckler’s Veto to the Provocateur’s Privilege.” Professor David Pozen, the series editor, introduced this latest installment. Here are a few excerpts:
Prof. David Pozen
“It is now widely believed,” Frederick Schauer observes in a new essay [see below], “that restricting the speaker on account of the actual or predicted hostile and potentially violent reaction of the audience gets our First Amendment priorities backwards.” To restrict speakers on this basis would be to grant the so-called heckler’s veto. Angry audiences would have, in effect, a right to enlist the state to suppress speech they don’t like; the more mayhem they threaten, the more potent this right would become.”
“Over the past fifty years or so, the U.S. Supreme Court has become less and less willing to countenance the heckler’s veto. Its First Amendment case law turned decisively against the proposition that a speaker may be punished for provoking a hostile audience, or inciting a sympathetic one, in a series of cases from the 1960s involving civil rights demonstrators. By the time the Court decided Forsyth County v. Nationalist Movement in 1992, it was not clear there were any justices who would allow a government body to impose higher fees on speakers, such as the white supremacists of The Nationalist Movement, whose messages were likely to create higher expenses for police or related services because of their inflammatory content. Lower courts have applied Forsyth County with vigor. By now, Dan Coenen recently opined, “the heckler’s-veto-based, hostile-audience-speech concept” appears “all but constitutionally extinct.” The basic First Amendment question that a city like Charlottesville faces today when white supremacists seek to hold a rally is not whether it can force them to internalize the resulting law enforcement costs, much less ban them altogether. The question Charlottesville faces is just how much money and effort must be allocated to protecting the white supremacists.”
Prof. Frederick Schauer (credit: USA Today)
“In place of the heckler’s veto, the Court has thus created what we might call the provocateur’s privilege. Extreme speakers have become entitled not only to use public forums in the face of actual or anticipated hostility, but also to commandeer public resources to try to keep that hostility within bounds. And the more extreme a speaker is, the more hostility will need to be managed and so the more resources will need to be commandeered: as Schauer writes, “the greater the provocation, the greater the reallocation.” Modern First Amendment doctrine, in other words, does not simply prevent neo-Nazis, neo-Confederates, and the like from being silenced by disapproving communities. It forces those communities to pay extra to enable their speech.”
“Schauer’s essay . . . explores this dilemma in light of recent confrontations between speakers and protesters in Charlottesville, Berkeley, Boston, and beyond. Schauer does not offer any comprehensive constitutional solutions; unless one is willing to rethink a half century of judicial resistance to content discrimination, it is hard to see how First Amendment doctrine could supply one. But with characteristic insight, he sheds light on the dilemma by limning its contours and placing it in historical, conceptual, and comparative context. . . .”
- Frederick Schauer, The Hostile Audience Revisited
Professor Schauer’s article was followed by four replies:
- Jelani Cobb submits that the term “hostile audience” confuses that true threat to public safety in Charlottesville came from the speakers.
- Mark Edmundson suggests resourceful use of technology and some resourceful policymaking,” including systematic surveillance of demonstration sites.
- Suzanne Goldberg examines different types of “costs”—pecuniary, pedagogic, psychological—that provocative speakers may impose on colleges and universities, and lays out a series of approaches for private institution.
- Rachel Harmon calls attention to the broad discretion that police officers enjoy in determining what is permissible protest.
Constitutional Commentary Symposium on “Hate Speech and Political Legitimacy”
- Hate Speech Bans, Democracy, and Political Legitimacy by James Weinstein
- Hate Speech, Public Assurance, and the Civic Standing of Speakers and Victims by Vincent Blasi
- Hate Speech Laws, Legitimacy, and Precaution: A Reply to James Weinstein by Alexander Brown
- Hate Speech—Definitions & Empirical Evidence by Katharine Gelber
- Taking Legitimacy Seriously: A Return to Deontology by Eric Heinze
- Legitimacy and Hate Speech by Robert Post
- Free Speech and Obedience to Law by Frederick Schauer
- Hate Speech, Legitimacy, and the Foundational Principles of Government by Steven H. Shiffrin
- Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech by Adrienne Stone
- The Conditions of Legitimacy: A Response to James Weinstein by Jeremy Waldron
- Viewpoint Discrimination, Hate Speech, and Political Legitimacy: A Reply by James Weinstein
Zansberg on Greater Procedural Protections for the Press
The fall 2017 issue of Communications Lawyer has an important essay (scroll down) in it by Steve Zansberg, a media law lawyer. The article is titled “Recent High-profile Cases Highlight the Need for Greater Procedural Protections for Freedom of the Press.” (The “essay is inspired by, and dedicated to, Professor Owen Fiss, for whom I had the pleasure of serving as a teaching assistant in his first-semester Civil Procedure course (many, many years ago).”) Here are a few excerpts:
Steven Zansberg
“Two recent high-pro le First Amendment cases, Terry Bollea (a/k/a Hulk Hogan) v. Gawker Media and Beef Products, Inc. v. American Broadcasting Companies, Inc. (a/k/a the “Pink Slime” case) demonstrate the need for providing greater procedural protection to news media (press) defendants in civil litigation arising from their newsgathering and publishing activities. More specifically, it is my thesis that to provide the “breathing space” for the freedom of speech that the First Amendment requires, there must be an opportunity for interlocutory (pre-trial) appeal of dispositive motions premised on First Amendment defenses in civil cases challenging arguably protected speech. While others have advocated for such relief in the past, these two recent cases demonstrate that the need for such protection has never been greater. . . .”
“I outline four alternative routes to effect the necessary change—two are legislative, and two are judicial. The failure to provide for such interlocutory appeal of denial of dispositive motions premised on First Amendment defenses, either by statute or judicial creation, imposes an unacceptable burden on the freedom of the press and the freedom of speech. . . .”
Four Proposals
1. Statutory — interlocutory appeal as of right for all Motions for Summary Judgment denials
2. Statutory — Anti-SLAPP statute with interlocutory appeal as of right for all denials where challenged speech is of public concern
3. Judicial — discretionary granting of defendant’s dispositive motions, while expressing reservations, to allow for appellate review before trial
4. Judicial — appellate (Supreme Court) recognition that interlocutory review is mandated by the First Amendment, as a necessary procedural remedy (like independent appellate review) to adequately protect free speech and press.
Masses case reargued in 2nd Circuit before 3-Judge Panel
Floyd Abrams & Kathleen Sullivan in front of bust of Judge Learned Hand.
Earlier this week, Masses Publishing Co. v. Patten was “reargued” in the Second Circuit courtroon before a three-judge panel consisting of Judges Denny Chin (presiding), Robert Sack, and Pierre Leval.
Floyd Abrams argued on behalf of the postmaster and Kathleen Sullivan argued on behalf of The Masses Publishing Company.
Chief Judge Robert Katzmann introduced the program.
The event was co-hosted the U.S. Court of Appeals in conjunction with the First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression, and the Committee on Media Law Section of the New York State Bar Association.
→ A video of the event will appear soon on the First Amendment Salon’s page on FIRE’s online First Amendment library. (More on that when it is posted.)
→ A digitalized copy of all the relevant court documents in the Masses case can be found in FIRE’s Special Collections section of its First Amendment Library.
FIRE’s 2016–2017 Annual Report
This from Bridget Glackin over at the Foundation for Individual Rights in Education (FIRE):
FIRE has just released its 2016–2017 Annual Report. “[W]e want to provide a brief glimpse into the report for our readers and supporters. In the midst of ongoing challenges, and as we look back on a year that was filled with grim news from the academy, the report provides a reason for optimism — and a rallying point for the continuing fight for campus freedom. As our report shows, FIRE achieved considerable success in the last year. Here are just a few highlights”:
Additional information is set out in the 2016–2017 Annual Report.
Prof. Calvert on Matal v. Tam
- Clay Calvert, Beyond Trademarks and Offense: Tam and the Justices’ Evolution on Free Speech, Cato Supreme Court Review (2016-2017)
Summation: “Ultimately, from a free-speech perspective, there is much to praise about the ruling in Tam. It vindicates and reaffirms key First Amend- ment principles regarding both offensive expression and viewpoint discrimination. It also rebuffs the government-speech doctrine in the realm of trademarks, while attempting to curb its expansion elsewhere. Furthermore, facets of the opinions of Justices Alito, Thomas, and Kennedy collectively raise questions about the future of an inter- mediate-scrutiny-based commercial speech doctrine. Additionally, Tam reinforces the Court’s continued respect for the marketplace of ideas. What’s more, Justice Alito came to the aid of offensive expression, while Justice Breyer didn’t stray off the beaten doctrinal path. That’s just about a First Amendment home run, with the unfortunate 4-4 split among the justices regarding viewpoint discrimination the only item keeping the ball inside the fence for a triple.”
Forthcoming Books
- Keith E. Whittington, Speak Freely: Why Universities Must Defend Free Speech (Princeton University Press, 2018)
- John Charney, The Illusion of the Free Press (Hart Publishing, January 2018)
- Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, May 2018)
- Daxton Stewart, Media Law through Science Fiction: Do Androids Dream of Electric Free Speech? (Routledge, June 2018)
News, Editorials, Op-eds, Blog Posts & Obits
- Josh Solomon, Parker Thomson, defender of the First Amendment, dies at 85, Tampa Bay Times, Nov. 7, 2017
- Jason Busch, Judges question whether the Texas “sanctuary cities” law violates First Amendment rights of local officials, San Antonio Express News, Nov. 7, 2017
- Katya Schwenk, Free Speech Project Hosts Panel On First Amendment, The Georgetown Voice, Nov. 5, 2017
- Rick Hasen, Washington State Court Rejects First Amendment Challenge to Seattle Campaign Finance Voucher Program, Election Law Blog, Nov. 3, 2017
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
- Connecticut v. Baccala
- Berninger v. Federal Communications Commission
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.)
Last Secheduled FAN # 168: Resolution of wedding cake case — is it all about fashioning the facts?
Next Scheduled FAN # 170: Wednesday, November 15, 2017