President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excluded—“blocked”—Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it.
— Complaint: Knight First Amendment Institute v. Trump
This from the Knight First Amendment Institute: Tomorrow, March 8 at 11 a.m., “the Knight First Amendment Institute at Columbia University and the U.S. Department of Justice will present oral argument in the Knight Institute’s landmark First Amendment challenge to President Trump’s blocking of critics on Twitter. The argument, which is open to the public, will be held before the Hon. Naomi Reice Buchwald at the Daniel Patrick Moynihan U.S. Courthouse in New York City.”
“Last July, the Knight Institute filed suit in the Southern District of New York contending that the @realDonaldTrump account is a “public forum” under the First Amendment and that the president and his subordinates are violating the Constitution by blocking people from the account simply because they have criticized the president or his policies. The suit also contends that the Trump administration is violating the plaintiffs’ First Amendment right to petition the government for redress of grievances.”
Katie Fallow
“The Institute and the Trump administration filed motions for summary judgment in the lawsuit last fall, and this Thursday, Judge Buchwald will hear argument from both parties.”
→ Counsel for Knight Institute: Jameel Jaffer, the Knight Institute’s executive director, and Katie Fallow, a senior staff attorney at the Institute, will argue before the court, and several plaintiffs in the lawsuit will be in attendance.
→ For more information about the lawsuit, including the latest filings, go here.
Related: This from First Amendment Watch: President Trump, Other Elected Officials Block ‘Disliked’ Twitter Followers, March 3, 2018
Headline: “Haling The First Amendment: NYC Taxi Authority’s Ad Ban Struck Down”
Over at Forbes, Glenn Lammi writes: Taxicab, livery, black car, and limousine companies in the Big Apple may own the vehicles their employees drive, but they know full well who really controls them: the New York City Taxi and Limousine Commission (TLC). Passenger transportation is one of the city’s most heavily regulated businesses, but as a federal district court judge recently reminded TLC, those small business still have constitutional rights.”
“. . . In 2015, media-distribution company Vugo sought to partner with Uber, Lift, and other rideshare company drivers in New York City. Those drivers would download Vugo software onto a tablet device that would be displayed to riders. Vugo would pay each driver 60% of the ad revenue generated from their tablets. Because ridesharing falls into the “other” category of TLC-regulated for-hire vehicles, and TLC made it clear that it would not approve any rideshare drivers’ requests for interior advertising, Vugo could not proceed with its expansion plans. In response, Vugo filed a First Amendment challenge against TLC in U.S. District Court for the Southern District of New York.”
“Southern District Judge Ronnie Abrams held on February 22, 2018 (Vugo v. City of New York) that TLC’s ban abridged Vugo’s commercial-speech rights. . . .”
New First Amendment Group — Speech First
It seems that the five freedoms of the First Amendment are getting ever more allies. The latest is a group known as SPEECH FIRST. Here is some information about the group headed by Nicole Neily, president of Speech First.
Nicole Neilly (credit: Cato Institute)
Students’ speech rights on campus are threatened on a regular basis. But the prospect of standing up to a school can be overwhelming – it can be expensive and time-consuming (not to mention awkward, since the student probably still wants a diploma at the end of the day). That’s why most students don’t take action. But what if students who wanted to stand up for free speech on campus were supported by like-minded students from all over the country? And what if those students were part of an organization that had the resources to fight back? Suddenly, it’s not so daunting after all.
That’s why Speech First was created. By coming together, we’ve created a nationwide community to reassure students that they won’t fight these cases alone and that they’ll be supported every step of the way: on campus, in the media, and in court. We’re a membership association of students, parents, faculty, alumni, and concerned citizens from across the country who’ve had enough, and who want to fight back.
We believe that free and open discourse is an essential component of a comprehensive education. We are committed to restoring the freedom of speech on college campuses because we believe that by exposing students to different and challenging ideas, they will emerge stronger, smarter, and more resilient.
Speech First will protect students’ free speech rights on campus. Through advocacy, litigation, and other means, we will put colleges and universities on notice that shutting down unwanted speech will no longer be tolerated.
Board of Directors
- Jamil Jaffer (George Mason University)
- Adam White
- Kate Comerford Todd
- Kim Dennis
Legal Counsel
Are Student Walkouts Protected By the First Amendment?
That is the question raised over at First Amendment Watch.
“After the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, students around the country quickly began to protest gun violence. One way gaining much attention: student walkouts. School administrators have responded both positively and negatively to these demonstrations. Now various advocacy groups are calling for a national walkout for 17 minutes at 10 a.m. March 14 in solidarity with the victims of the Florida tragedy. Are these protests protected by the First Amendment?”
These questions are answered by posts consisting of News & Updates, History & Legal Cases, and Analysis and Opinion.
First Amendment challenge to New York City gun licensing restriction fails
David Hudson
This from David Hudson over at the First Amendment Encyclopedia: “Individuals do not have a First Amendment expressive association claim to join a specific gun club or travel with their firearms to gun clubs outside New York City, a federal appeals court has ruled, reasoning that there is no First Amendment right to ‘generalized social association.'” “The New York State Rifle & Pistol Association and three individuals argued that New York City restriction on carrying firearms violated a panoply of constitutional rights, including the Second Amendment right to keep and bear arms, the Dormant Commerce Clause, the right to travel, and the First Amendment.
“The challengers’ First Amendment claim was based on the right to expressive association or the gathering together of individuals for expressive purposes.” “Under New York City law, individuals can obtain a carry permit for firearms or a so-called premises permit, allowing individuals to keep a gun at his or her home or place of business. Individuals also can take their permitted guns, unloaded, to authorized gun ranges in New York City. However, individuals cannot transport such guns to gun ranges outside the city. . . .”
“The Second Circuit rejected the First Amendment challenge in its decision in New York State Rifle & Pistol Association v. New York City. The appeals court characterized joining with others at gun clubs as social association, not expressive association. ‘Gathering with others for a purely social and recreational activity, whether it is dancing or shooting guns is not expressive association,’ the appeals court wrote. ‘Accordingly, the ability to join a specific gun club is not protected association under the Constitution.’ . . .”
Volokh Conspiracy: “University of Miami Demands $7500 for Security for Free Speech Debate Involving Charles Murray”
This from Eugene Volokh: “The Federalist Society at the University of Miami School of Law is trying to put on a debate on free speech between political scientist Charles Murray and Miami law professor Mary Anne Franks, who has written extensively about First Amendment law. Murray, of course, is controversial because he coauthored The Bell Curve: Intelligence and Class Structure in American Life, a book that suggested (among other things) that there may be some biological differences in intelligence between various racial groups. But perhaps because of recent attempts to suppress his speech — including a notorious violent attack at Middlebury College, in which Middlebury professor Allison Stanger was injured — he has also started talking about academic freedom (see, e.g., here). This particular event promised to be a serious, substantive discussion between two serious, substantive scholars.”
“But the University of Miami has been demanding over $7500 in security fees to allow the event to proceed; their quote called for 21 police officers plus 10 security guards, as well as a “team of bag checkers and wanders.” Naturally, that amount is prohibitive for a small student group. . . .”
→ Story and analysis continued here.
Upcoming March conference on “Free Expression in an Age of Inequality”
The folks at the Knight First Amendment Institute are keeping busy what with litigation and conferences — speaking of which, they have a major one they are co-hosting later this month. Here are some of the details:
A growing chorus of judges, lawyers, and journalists have called attention to a “Lochnerian” turn in First Amendment doctrine, as the federal courts have increasingly invalidated or narrowed regulations of socio-economic power in the name of free speech or the free exercise of religion. While many legal scholars have offered criticisms of First Amendment Lochnerism — the use of the First Amendment to entrench social and economic hierarchy — there have been few efforts to describe or defend the alternative: a First Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of social and economic equality. There has likewise been very little commentary connecting First Amendment Lochnerism to broader changes in the institutional landscape of free expression, including the proliferation of private platforms that facilitate and filter public debate.
In response, the Columbia Law Review, the Knight First Amendment Institute, and the Center for Constitutional Governance are convening a day of debate, discussion, and reflection by leading legal scholars. In asking where the First Amendment goes from here, this symposium aims to break down barriers between different scholarly subfields — connecting high-level questions about the First Amendment’s meaning and function with emerging problems in areas such as Internet law, media law, labor law, antidiscrimination law, campaign finance law, and commercial speech. More fundamentally, it aims to move First Amendment theory and practice away from critiques of past judicial rulings and toward the more affirmative project of redesigning the law of free expression for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The conversation will center around seven original works of scholarship, to appear in the November 2018 issue of the Columbia Law Review, that take up this challenge, whether enthusiastically or critically.
Program
Opening Remarks
- Lee C. Bollinger, President & Seth Low Professor of the University, Columbia University
- David Pozen, Professor of Law, Columbia Law School
The Digital Infrastructure and Political Economy of Free Expression
Authors
- Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
- Jedediah Purdy, Robinson O. Everett Professor of Law, Duke University School of Law
Moderator: Jameel Jaffer, Executive Director, Knight First Amendment Institute at Columbia University
Panelists
- Maggie McKinley, Assistant Professor of Law, University of Pennsylvania Law School
- Tim Wu, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School
Can the First Amendment Be Progressive?
Authors
- Leslie Kendrick, Vice Dean & Professor of Law, University of Virginia School of Law
- Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
Moderator: Jamal Greene, Dwight Professor of Law, Columbia Law School
Panelists
- William Araiza, Professor of Law, Brooklyn Law School
- Caroline Mala Corbin, Professor of Law, University of Miami School of Law
Equal Protection and the First Amendment
Authors
- Genevieve Lakier, Assistant Professor of Law, University of Chicago Law School
- Bertrall Ross, Chancellor’s Professor of Law, University of California, Berkeley School of Law
Moderator: Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School
Panelists
- Cheryl I. Harris, Rosalinde and Arthur Gilbert Professor in Civil Rights and Civil Liberties, UCLA School of Law
- Zephyr Teachout, Associate Professor of Law, Fordham University School of Law
A Progressive Labor Vision of the First Amendment
Author
- Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law, University of California, Berkeley School of Law
Moderator
- Olatunde Johnson, Vice Dean & Jerome B. Sherman Professor of Law, Columbia Law School
Panelists
- K. Sabeel Rahman, Assistant Professor of Law, Brooklyn Law School
- Ganesh Sitaraman, Professor of Law, Vanderbilt Law School
- Laura Weinrib, Professor of Law, University of Chicago Law School
Reflections and Next Steps
Moderator
- Jeremy Kessler, Associate Professor of Law, Columbia Law School
Panelists
- Amy Kapczynski, Professor of Law, Yale Law School
- Frank Pasquale, Professor of Law, University of Maryland Francis King Carey School of Law
- Amanda Shanor, Staff Attorney, National Legal Department, American Civil Liberties Union
- Nelson Tebbe, Professor of Law, Cornell Law School
Closing Remarks
- Tomi Williams, Editor-in-Chief, Columbia Law Review
Date: Friday, March 23, 2018, 8:30 a.m. – 5:15 p.m. (reception to follow)
Location: Jerome Greene Hall Room 101 435 West 116th Street, New York, New York 10027
Registration: The symposium is free to all attendees. Registration is required (go here).
New Essay by Michael McConnell
- Michael McConnell, Dressmakers, Bakers, and the Equality of Rights, SSRN, March 4, 2018
Abstract: Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.
[ht: Eugene Volokh]
New & Notable Blog Posts
→ Heather Whitney, Search Engines, Social Media, and the Editorial Analogy, Emerging Threats, Knight First Amendment Institute, Feb. 2018
Responses
- Eric Goldman, Of Course, the First Amendment Protects Google and Facebook (and It’s Not a Close Question), Emerging Threats, Knight First Amendment Institute, Feb. 2018
- Genevieve Lakier, The Problem Isn’t the Use of Analogies but the Analogies Courts Use,
- Frank Pasquale, Preventing a Posthuman Law of Freedom of Expression,
- Emerging Threats, Knight First Amendment Institute, Feb. 2018
News, Editorials, & Op-eds
→ Kent Greenfield, Georgia Violated Delta’s First Amendment Rights, Slate, March 2, 2018
→ Henry Miller & Gregory Conko, The First Amendment Applies to the FDA Too, Reason.com, March 6, 2018
- Jordana Rosenfeld, Student Protesters: You Have First Amendment Rights, The Nation, March 6, 2018
- Ryan Stiesi, The First Amendment: a conversation at Rutgers on how well college students know their rights, The Daily Targum, March 7, 2018
- Hans A. Von Spakovsky & Elizabeth Slattery, The Supreme Court Should Restore the First Amendment in Minnesota, National Review, March 3, 2018
- Minneapolis attorney John Borger wins First Amendment award, Star Tribune, March 5, 2018
- Karen Savage, First Amendment Cannot Shield Exxon from Climate Probe, New York AG Argues, Climate Liability News, March 5, 2015
2017-2018 Term: First Amendment Free Expression Cases
Cert. Granted
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
Pending: Cert. Petitions
- Walker v. N.Y.C. Dep’t of Educ. et al.
- Flanigan’s Enterprise, Inc. v. City of Sandy Springs
- Nationwide Biweekly Administration, Inc., et al v. Perez
- CTIA v. City of Berkeley
- Harris v. Cooper
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Berninger v. Federal Communications Commission
Review Denied
- Shepard v. Florida Judicial Qualifications Commission
- Morris v. Texas (dismissed for want of jurisdiction)
- Connecticut v. Baccala
- Tobinick v. Novella
- Muccio v. Minnesota
- Elonis v. United States
- Final Exit Network, Inc. v. Minnesota
Free-Speech Related Cases: Cert. Granted
- Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Pending
- Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
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 Scheduled FAN # 180: Cert. Petition — Does Renton v. Playtime Theatres’ Secondary Effects standard of review survive Reed v. Town of Gilbert?
Next Scheduled FAN # 182: Wednesday, March 15, 2018