FAN.3 (First Amendment News)

This batch of news items covers everything from a student speech case to a license plate case to an upcoming Citizens United conference to a practitioners’ conference on NYT v. Sullivan to an article about costs of free speech to a book about the “cosmopolitan First Amendment.” Thanks again to all those who are flagging items for FAN – and be sure to let me know about new articles, books, events, cases or controversies, or what have you. (If you missed the last FAN column, go here.)  With that, here is the news:

  • Panhandler’s Victory: The facts involved Ms. Allison Prior, who stood on a Portland, Maine median and held a sign that read: “Homeless, hungry and sober, please help.” She collected between $20 and $25 per day from passing motorists, which she used to buy food, toiletries and basic necessities. In Cutting v. Portland, Federal District Judge George Singal struck down a Portland ordinance that made it illegal for anyone to stand on a median strip to hold signs except for political campaign purposes. “’Today’s decision is an important victory for freedom of speech, and for all people who use public spaces to communicate with their fellow citizens,’ said Zachary Heiden, Legal Director for the ACLU of Maine.’” [Editorial comment: I have always been amazed how commercial speech is largely protected, whereas life-sustaining speech (aka “panhandling”) tends to receive much less welcome attention, though there are some new developments in that direction. See e.g. Speet v. Schuette (6th Cir., 2013) (striking down Michigan anti-begging statute). For some stories on how the courts and cities are dealing with this issue, see the First Amendment Center’s news roundup on the topic.]
  • Student Speech Case: A school district in Pennsylvania has filed a petition for review in the Supreme Court to contest a Third Circuit First Amendment ruling against it. In the 9-5 en banc ruling, Judge D. Brooks Smith wrote for the majority and Judge Thomas Hardiman for the dissenters. The case is Easton Area School District v. B.H. (case no: 13-672). The issues before the Supreme Court are: (1) Whether the Third Circuit erred in constructing a new test for the application of Bethel School District No. 403 v. Fraser that would prohibit regulation of lewd expression in the public schools, even in the absence of issue preclusion; (2) whether the Third Circuit misapplied the narrowest grounds doctrine to hold that Morse v. Frederick dictated a modification of the holding in Fraser by creating a two-part test for regulation of expression controlled by Fraser; and (3) whether the Third Circuit abused its discretion in failing to give due deference to school administrators’ objectively reasonable determination that a sexual double entendre constituted lewd or vulgar speech which could be prohibited under Fraser. The matter is still pending before the Court.  
  • 4th Circuit Strikes Down NC License Plate Law: Over at the Constitutional Law Prof blog, Professor Ruthann Robson has a post on a new appellate ruling striking down a North Carolina “Choose Life” license plate law. The case is ACLU of North Carolina v. Tata and the opinion for a unanimous panel was by circuit Judge James A. Wynn, Jr. Judge Wynn’s opinion opens with a quote for the Citizens United case: “‘Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. . . .  Chief amongst the evils the First Amendment prohibits are government “restrictions distinguishing among different speakers, allowing speech by some but not others.’” Christopher Anderson Brook of the NC ACLU successfully argued the case for the Plaintiff-Appellees.
  • Upcoming Symposium: On February 28, 2014, the Stetson Law Review will host a conference titled Taking Stock of Citizens United.” The symposium is co-sponsored by the Corporate Reform Coalition and the American Constitution Society. The keynote speaker will be Lawrence Lessig (Harvard).  Panelists: John Coates (Harvard), Robert Jackson (Columbia), Zephyr Teachout (Fordham), Fran Hill (Miami), Charlotte Garden (Seattle), Jason Bent (Stetson), Ciara Torres-Spelliscy (Stetson), Lisa Graves (Center for Media & Democracy) and Michael Handani (St. Mary’s College). For those who cannot attend, a video link will be available on the Public Citizen-Corporate Reform Coalition website after the event. (Last January New Hampshire Law School also held a conference on the Citizens United case.)
  •  NYT v. Sullivan Conference: On March 24, 2014, the Practicing Law Institute will host a conference in New York to commemorate the 50th anniversary of New York Times Co. v. Sullivan.  Some of those in the program include the following: Floyd Abrams (Cahill Gordon & Reindel), Dean Baquet (NYT), Vincent Blassi (Columbia Law), James Goodale (Debevoise & Plimpton), Victor Kovner (Davis Wright Tremaine), Robert Sack (Second Circuit), and Kathleen Sullivan (Quinn Emanuel Urquhart & Sullivan). Among other things, this practitioner-oriented conference will (1) explore what the Supreme Court accomplished in Sullivan and why, (2) learn how the case transformed our conception of the First Amendment, (3) examine how Sullivan and its progeny revolutionized the litigation of defamation cases, and (4) understand Sullivan’s ongoing relevance in a digital world.
  • The Costs of Free Speech: Professor Garrett Epps has a just posted a thoughtful piece in The Atlantic titled “Free Speech Isn’t Free,” which argues that there are costs (individual and societal) to honoring a broad range of speech rights, especially rights associated with “hate speech.” Epps writes: “The reason that we allow speech cannot be that it is harmless. It must be that we prefer that people harm each other, and society, through speech than through bullets and bombs. American society is huge, brawling, and deeply divided against itself. Social conflict and change are bruising, ugly things, and in democracies they are carried on with words. That doesn’t mean there aren’t casualties, and it doesn’t mean the right side will always win.”
  • New Book: In case you missed it, late last year Cambridge University Press published The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (pp. 448) by William and Mary Law Professor Timothy Zick. Here is a snippet of the book’s description: “In a globalized and digitized era, we need to better understand the relationship between the First Amendment to the United States Constitution and international borders. This book focuses on the exercise and protection of cross-border and beyond-border expressive and religious liberties, and on the First Amendment’s relationship to the world beyond U.S. shores.”
  • Next FAN: Wednesday, February 26.

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