How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic. — Elizabeth ‘Libby’ Locke
Headline: “New York Times, NBC, and ‘60 Minutes’ Bigwigs Hired These Media Assassins to Fight #MeToo Stories”
That is the banner accompanying a news story filed by Lachlan Cartwright in The Daily Beast. Here are a few excerpts:
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“One of television’s most powerful men, 60 Minutes Executive Producer Jeff Fager, hired a law firm that boasts about “killing stories” for a Washington Post investigation into him, three sources familiar with the matter told The Daily Beast.””The story was a deep dive into what CBS managers knew about former anchor Charlie Rose’s alleged sexual misconduct, but due to the aggressive tactics of law firm Clare Locke, the sources said, the story was ‘effectively neutered.'”- “Clare Locke is the creation of husband and wife team Tom Clare and Elizabeth ‘Libby’ Locke. ‘Some of Libby’s biggest defamation ‘wins’ are stories the public will never hear about,’ her website says. They have litigated against Rolling Stone, The New York Times, Katie Couric, CNN, and Gawker, to name a few.”
- “Clare Locke was ‘able to slow it down and in effect change the dynamic,’ a person with knowledge of the situation told The Daily Beast. The law firm sent The Washington Post several letters threatening litigation, the sources said. As a result, other reporting about [60 Minutes Executive Producer Jeff] Fager was left out of the published story, three sources said.”
Reply
- “Tom “Clare told The Daily Beast: ‘We’re proud of the pre-publication work we do to make sure that media reports about our clients are truthful and accurate.'”
Theodore J. Boutrous Jr. (credit: Zimbio)
Comment
“‘There’s is a new spin on defamation practice. They are bragging about killing stories. They are not focusing on litigation but the pre-publication element to squash a story,’ said Theodore J. Boutrous Jr., partner at the Gibson Dunn law firm and a vocal First Amendment advocate.”
Related
→ A.J. Katz, Jeff Fager Reportedly Hired Law Firm to Kill a WaPo Investigation Into His Role in Charlie Rose Saga, Adweek, July 20, 2018
5 Notable New & Forthcoming Commentaries on the Janus Case
- William Baude & Eugene Volokh, Compelled Subsidies and the First Amendment, Harvard Law Review (forthcoming 2018)
Professor William Baude (credit: SCOTUSblog)
Professor Eugene Volokh (credit: UCLA Magazine)
“[W]e think the [Janus v. AFSCME] majority—and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar —erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of—likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong.
- Marty Lederman, Exacerbating the real error in Abood: Is there any justification, “originalist” or otherwise, for the Court’s holding in Janus that deducting agency fees abridges the freedom of speech?, Balkinization July 23, 2018
“The most striking thing about Justice Alito’s majority opinion–to me, anyway–is that the Court majority was willing (quite eager, in fact) to overrule such a well-entrenched precedent without providing virtually any basis for thinking that the fee deduction “abridges” anyone’s actual speech. As many scholars have long explained (including my colleagues Greg Klass and David Luban, as well as, more recently, Eugene Volokh and Will Baude), Justice Alito is right that “Abood was poorly reasoned“–but in the other direction. The original sin of Abood was not the Court’s failure to prohibit agency fees for collective bargaining functions, but instead in holding that employee deductions can implicate the Free Speech Clause in cases where there’s no compelled association (no one is required to join the union), no possibility of any misattribution of the organization’s speech to the objecting payers, and the payment in question is not triggered by the objector’s own speech (as in Tornillo and PG&E).”
- Charlotte Garden, The Deregulatory First Amendment Strikes Back, Take Care, July 3, 2018
“This post is the first in a series on the uses and abuses of the First Amendment as a deregulatory tool – that is, the First Amendment’s potential to undermine regulatory schemes that protect workers, consumers, voters, investors, and more. The format is borrowed from Slate’s Supreme Court Breakfast Table. The participants are Nikolas Bowie, Caroline Mala Corbin, Catherine Fisk, and Charlotte Garden.”
- Jedediah S. Purdy, Beyond the Bosses’ Constitution: Toward a Democratic First Amendment, Columbia Law Review (forthcoming 2018)
Professor Jedediah Purdy (credit: Duke University School of Law)
“Once we see that any constitutional vision involves some relationship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners, but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy.”
- Aaron Tang, How to Undo Janus: A User-Friendly Guide, SSRN, June 1, 2018
“This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court’s decision invalidating public union fair share fees in Janus v. AFSCME, Council 31.
“Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000).”
3-D Guns & Free Speech
“Washington and eight other states have sought a TRO and prior restraint on information posted on the internet. Regardless of your opinions on gun control, this case would set a dangerous 1st Amendment precedent.” — Josh Blackman
CNN reports that since last “Sunday more than 1,000 people had already downloaded plans to print an AR-15-style semiautomatic assault rifle, according to the office of Pennsylvania Attorney General Josh Shapiro.”
Professor Josh Blackman (credit: The Business Journals)
“Pennsylvania isn’t the only state trying to bar access to 3-D printed guns. Washington Attorney General Bob Ferguson announced Monday he is leading a lawsuit in eight states and the District of Columbia to block a court action that would let people download plans for untraceable 3-D printed weapons. This lawsuit [was] filed in federal court in Seattle.”
Judge Robert Lasnik (credit: Bar Bulletin)
“‘This is a free speech case. This isn’t a gun case,” said Professor Josh Blackman, who challenged Pennsylvania’s efforts to block the downloads. ‘One state cannot censor the speech of a citizen in another state.'”
→ Judge Blocks Release Of Blueprints For 3-D Printed Guns In The 11th Hour, First Amendment Watch, July 30, 2018 (District Judge Robert Lasnik “has blocked the planned release of Defense Distributed’s blueprints for 3-D printed guns the evening before they were set to go online and set another hearing of the case for August 10, saying that the First Amendment ramifications need to be examined closely.”)
→ Michael D. Shear, Tiffany Hsu & Kirk Johnson, Judge Blocks Attempt to Post Blueprints for 3-D Guns, New York Times, July 31, 2018 (“Judge Lasnik said in his ruling that there were ‘serious First Amendment issues’ that would need to be worked out later in court, but that for the moment, there should be ‘no posting of instructions of how to produce 3-D guns on the internet.’ The judge set a follow-up hearing for Aug. 10 in his courtroom in downtown Seattle.”)
→ “We are disappointed in this ruling, which will result in a global injunction on the freedom of speech” Professor Blackman told FAN.
Related
- Noah Fedman, The First Amendment Protects Plans for 3-D Guns, Bloomberg, Aug. 1, 2018
- Jordain Carney, GOP senator blocks bill that would ban release of 3D gun blueprints, The Hill, July 31, 2018
David Cole: “Liberals, Don’t Lose Faith in the First Amendment”
David Cole
In an op-ed in the New York Times, the ACLU’s national legal director David Cole writes:
“Have conservatives hijacked the First Amendment?”
“Critics are increasingly making this claim, maintaining that under Chief Justice John G. Roberts Jr., the First Amendment, once an important safeguard for progressive speech, has become a boon to corporations, conservatives and the powerful.”
“But in most instances, the First Amendment doesn’t favor speech of the right or the left; it simply takes the government out of the business of controlling speakers by virtue of what they say. It often empowers the powerless. And most important, it helps check official abuse. . . .”
“The fact that conservatives benefit from the First Amendment is not something to bemoan. It is part of the constitutional bargain. It simply means the First Amendment is operating as it should, neutrally preserving the lifeblood of democracy.”
Antonin Scalia Law School About to Launch Free Speech Clinic
George Mason University’s Antonin Scalia Law School is about to launch a legal clinic dedicated to defending freedom of speech.
The Free Speech Clinic is one on the primary programs of the Liberty & Law Center, whose mission is to create greater awareness of the law’s role in promoting and protecting liberty.
Law students enrolled in the new Free Speech Clinic will earn academic credit representing clients whose free speech rights are under attack. In order to provide students a true practice experience, the Clinic’s work will be devoted to representing parties or supporting their attorneys rather than filing friend of the court briefs.
Professor JoAnn Koob
Center Director JoAnn Koob says “through the Free Speech Clinic, we plan to represent underrepresented clients and issues, in order to be truly impactful.”
The Center is also hosting a symposium on the 150th Anniversary of the Fourteenth Amendment on September 21st.
→ For more information, contact JoAnn Koob at jkoob@gmu.edu.
“So to Speak” Podcast: Free speech at the U.S. Supreme Court
On this episode of So to Speak: The Free Speech Podcast, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.”
The guests on the show are:
- Paul Sherman: Senior attorney, Institute for Justice
- Robert Corn-Revere: Partner, Davis Wright Tremaine
- Walter Olson: Senior fellow, Cato Institute
YouTube: Robert Post on Adacemic Freedom & Speech on Campus
- Dorsett Lecture Series: Free Speech on College Campuses with Robert C. Post (April 2018)
- Freedom of Speech in the University, Brown University (Nov. 2016)
- The Constitutional Dimensions of Academic Freedom, UC Davis Forums – Public Univ. & the Social Good (March 2015)
YouTube: Geoffrey Stone on Free Speech on Campus
- Ethics Institute Dorsett Fellowship Lecture: Free Speech on College Campuses – Geoffrey R. Stone (Sept. 2017)
YouTube: Ari Cohn on Understanding the First Amendment
- An Interview with FIRE’s Ari Cohn, The Rubin Report (July 26, 2018)
In the News
- In Light of Nomination, First Amendment Experts Weigh In On Kavanaugh’s Record, First Amendment Watch (Aug. 1, 2018)
- Paul Demko, The Sex-Trafficking Case Testing the Limits of the First Amendment, Politico, July 29, 2018
- Eugene Volokh, School District Provides $25K + Apology to Student Barred from Wearing “Trump Border Wall” T-Shirt, The Volokh Conspiracy, July 26, 2018
2018-2019 Term — First Amendment Free Expression Cases
Pending: Cert. Petitions
- Lair v. Mangan (9th Cir., denial of hearing en banc)
- CTIA v. City of Berkeley
- Nieves v. Bartlett
- Berninger v. Federal Communications Commission
Last Term: 2017-2018 Term — First Amendment Free Expression Cases
Four Cases Decided with Opinions*
- Lozman v. City of Riviera Beach, Florida
- Minnesota Voters Alliance
- Janus v. American Federation of State, Municipal and County Employees
- National Institute of Family and Life Advocates v. Becerra
*Masterpiece Cakeshop v. Colorado Civil Rights Commission (First Amendment Free Exercise holding)
* Benisek v. Lamone (Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.)
* Harris v. Cooper (affirmed, without any written comment)
Vacated & Remanded
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)
- Livingwell Medical Clinic, Inc. v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)
Cert. Granted & Cases Argued
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Benisek v. Lamone (argument: March 27, 2018)
Pending: Cert. Petitions
- CTIA v. City of Berkeley
- Zimmerman v. City of Austin, Texas
- Nieves v. Bartlett
- Berninger v. Federal Communications Commission
Review Denied
- Nationwide Biweekly Administration, Inc., et al v. Perez
- Flanigan’s Enterprises, Inc. v. City of Sandy Springs
- Contest Promotions, LLC., v. City & County of San Francisco
- Holmes v. Federal Election Commission
- Walker v. N.Y.C. Dep’t of Educ. et al.
- 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 Case: Decided
- 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. — Fourth Amendment claim sustained).
Free-Speech Related Cases: Cert. Denied
- 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?)
- 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, #197: Congressional Committee Holds Hearing on Proposed Free Flow of Information Act
NEXT SCHEDULED FAN, #198: Wednesday, August 8, 2019