Author: Ronald K.L. Collins

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FAN 57 (First Amendment News) Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case

PETITION FOR ORDER DIRECTING RELEASE OF TRANSCRIPTS OF CERTAIN TESTIMONY FROM AUGUST 1942 GRAND JURY INVESTIGATION OF THE CHICAGO TRIBUNE

UnknownThat is the caption in the petition titled In re Petition of Elliot Carlson, et al, which was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. The judging presiding over the case is Chief Judge Ruben Castillo. In addition to the lead petitioner, the other parties in the case are: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

Stanley Johnston & Jay Loy Maloney

Stanley Johnston & J. Loy Maloney of the Tribune

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

The government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

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The Justice Department convened a grand jury in August of 1942 to investigate whether Johnston and his managing editor, J. Loy Maloney, along with the Tribune had violated the Espionage Act of 1917. On August 19, 1942, the grand jury declined to issue any indictments.

Tribune_The  CitadelJubilant over its victory, the Tribune ran a front-page cartoon the next day — the cartoon depicted the Tribune Tower as a citadel for press freedom.

It is against that backdrop that Elliot Carlson (a naval historian) and his fellow petitioners requested the release of the transcripts of the testimony of all 13 witnesses who testified before the grand jury in connection with the Tribune investigation. The transcripts are apparently stored at a National Archives repository in College Park, MD (enclosures to Serials 1 through 11 for File Number 146-7-23-25).

In his declaration to the court, Carlson maintained that “[r]eleasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant. Historians and writers still disagree would the details of the Tribune scandal . . . but the grand jury testimony could settle the dispute.”

Government Opposes Release of 1942 Transcripts

On December 24, 2014, the government filed its response in opposition to the release of the grand jury transcripts. Its opposition was based on three basic arguments:

  1. “No Statute or Rule Provides for Release of Grand Jury Information for Reasons of Historical Interest”
  2. “Second Circuit Law Recognizing Historical Significance as a Special Circumstance Justifying Disclosure Is Flawed and Contrary to the Weight of  Supreme Court Jurisprudence,” and
  3. “The Supreme Court’s Rulemaking Body Has Rejected an Amendment to Rule 6(e) Based on Historical Interest”

In their reply memorandum, the Petitioners advanced two main arguments:

  1. “Courts have discretion to order disclosure of historical grand jury material in appropriate circumstances pursuant to their inherent authority,” and
  2. “The Coalition has demonstrated that disclosure of the testimony from the 1942 Tribune grand jury investigation is a proper exercise of this Court’s discretion.”

Lawyer for Petitioners: Brendan J. Healey

 Lawyer for the Government: Elizabeth J. Shapiro (U.S. Department of Justice)

A ruling is expected sometime within the next two months.

→ See also Editorial, “Breaking the code on a Chicago mystery from WWII,” Chicago Tribune, November 21, 2014

For some historical background, see:

  1. Lloyd Wendt, Chicago Tribune: The Rise of a Great American Newspaper (1979), pp. 627-636
  2. Michael S. Sweeney & Patrick S. Washburn, “‘Aint Justice Wonderful': The Chicago Tribune’s Battle of Midway Story and the Government’s Attempt at an Espionage Act Indictment in 1942,” Journalism & Communication Monographs December 5, 2013 (updated 2014)
  3. Dina Green, “Communication Intelligence and the Freedom of the Press. The Chicago Tribune’s Battle of Midway Dispatch and the Breaking of the Japanese Naval Code,” Journal of Contemporary History (1981)

ht: Katie Townsend

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Muzzle Awards ‘Honor’ First Amendment Violators

This from a news report in The Daily Progress: “The administration of a major university, the mayor of Peoria, Illinois, and an Alabama circuit judge are among this year’s recipients of the Jefferson Muzzle awards, given to people or institutions accused of stifling freedom of speech in the United States. Thomas Jefferson Center for the Protection of Free Expression . . . gives out the awards each year.”

Those receiving the awards were:

  1. Peoria, Illinois Mayor Jim Ardis
  2. Bergen Community College (NJ)
  3. Mora Co., New Mexico Board of Commissioners
  4. Bedford Co., Pennsylvania District Attorney Bill Higgins
  5. Alabama Circuit Court Judge Claud D. Neilson
  6. The Indiana Department of Corrections
  7. Asnuntuck Community College (CT)
  8. The University of Illinois at Urbana–Champaign

NB: Links are to stories re the reasons for bestowing the awards.

Video of Balkin-Redish Exchange Posted  Read More

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FAN 56.1 (First Amendment News) Constitutional & Criminal Law Experts File Brief Defending Gov. Rick Perry — First Amend. & Other Defenses Raised

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This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:

Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.

Gov. Rick Perry

Gov. Rick Perry

The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.

One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.

The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call  for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).

 See here re video of Gov. Perry’s Aug. 16, 2014 press conference

See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment

Counsel for Gov. Perry on appeal: Tony BuzbeeDavid Botsford & Thomas R. Phillips (Appellant’s brief here)

Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed  in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:

  1. “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
  2. “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”

The 18 who signed onto the amicus brief are:

  • Floyd Abrams (First Amendment lawyer)
  • Michael Barone (Resident Fellow at the American Enterprise Institute)
  • Ashutosh Bhagwat (UC Davis law professor)
  • Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
  • Paul Coggins (former U.S. Attorney for the Northern District of Texas)
  • Alan Dershowitz (Harvard law professor)
  • Raul A. Gonzalez (Former Justice, Texas Supreme Court)
  • James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
  • Daniel Lowenstein (Emeritus UCLA law professor)
  • Michael W. McConnell (Stanford law professor)
  • John T. Montford (Former District Attorney for Lubbock County, TX)
  • Michael Mukasey (Former U.S. Attorney General & former federal court judge)
  • Theodore B. Olson (Former Solicitor General of the United States)
  • Harriet O’Neill (Former Justice, Texas Supreme Court)
  • Nathaniel Persily (Stanford law professor)
  • Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
  • Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
  • Eugene Volokh (UCLA law professor)

The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. – Alan Dershowitz (Aug. 18, 2014)

Free Speech Claims

James C. Ho (lead counsel)

James C. Ho (lead counsel)

The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions.  “[H]e has every right to do just that,” they contend.

Core Political Speech: “A political official,” they add, “has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).”

Parade of Horribles: “The consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected—and exceedingly common—political speech.”

Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”

Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”

 After offering various other free speech challenges, the authors of the amicus brief point out that

Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.

Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”

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FAN 56 (First Amendment News) Floyd Abrams Signs Contract to do Third Book on Free Speech

Floyd Abrams

Floyd Abrams

If only he didn’t so much enjoy the lawyering life, Floyd Abrams might have been a law professor. For he surely savors publishing books and articles. Witness his Speaking Freely: Trials of the First Amendment (Penguin, 2006), followed by his Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013) — this in addition to numerous law review articles and op-eds (see here).

Now, only a little more than a year since his last book was published, Mr. Abrams has signed a contract to do yet another book on free speech. Its title: Why the First Amendment Matters. The book will be a part of the “Why X Matters” series published by Yale University Press. Other works in that series include Mark Tushnet’s Why the Constitution Matters (2011) and Louis Begley’s Why the Dreyfus Affair Matters (2010).

The work will be in the 30,000-40,000 words range with a submission date of November 15, 2015. Steve Wasserman is Abrams’ editor. Mr. Wasserman is the former editor of the Los Angeles Times Book Review and served as the editorial director of Times Books and publisher of Hill & Wang, an imprint of Farrar, Straus & Giroux. He is a past partner of the Kneerim & Williams Literary Agency and is currently the executive editor at large for Yale University Press (he specializes in trade publications).

The 78-year-old Abrams shows no signs of retiring anytime soon and continues to manage a full workload (and then some) as a practicing lawyer. That said, he still has a ways to go to top the publishing record of another First Amendment lawyer, Theodore Schroeder (1864-1953) — the co-founder of the Free Speech League (the precursor to the ACLU) and the author of several books on free speech.  To be fair, however, Schroeder was more of a writer and activist than a litigator, so he did not have to worry about the demands of being a full-time practitioner.

 See also Floyd Abrams, “Libert is Liberty” (March 16, 2015 speech at Temple University Law School)

Go here for a list of practicing lawyers who have written books on free speech.

 Forthcoming Event: Floyd Abrams Institute: Freedom of Expression Scholars Conference # 3 (Saturday, May 2, 2015 – 8:15 a.m. to Sunday, May 3, 2015 – 5:15 p.m.) (Mr. Abrams will be in attendance)

Hillary Clinton: ‘I would consider’ anti-Citizens United amendment

The movie that gave rise to the Citizens United case

The movie that gave rise to the Citizens United case

This from an MSNBC news report: “Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. ‘I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,’ she said in response to a question on the measure.”

“Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. “I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,” she said in response to a question on the measure.”

→ See also YouTube video clip here.

Garry Trudeau Takes Aim at Charlie Hebdo — Critics Fire Back  Read More

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Posner Mania — Two New Books Coming this January: One by Posner, the other on Posner

Can one ever have his or her fill of Richard Posner? Perhaps, perhaps not. However that may be, the maverick jurist will be in the limelight once again by way of two forthcoming books — yet another book by him, and biography about him (the first of its kind).

On New Years day of next year, Oxford University Press will release Richard Posner by William Domnarski. The book is slated to be 336 pages long and will sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judge Richard Posner is one of the great legal minds of our age, on par with such generation-defining judges as Holmes, Hand, and Friendly. A judge on the U.S. Court of Appeals for the Seventh Circuit and the principal exponent of the enormously influential law and economics movement, he writes provocative books as a public intellectual, receives frequent media attention, and has been at the center of some very high-profile legal spats. He is also a member of an increasingly rare breed-judges who write their own opinions rather than delegating the work to clerks-and therefore we have unusually direct access to the workings of his mind and judicial philosophy.”

“Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. The list includes among others members of the Harvard Law Review, colleagues at the University of Chicago, former law clerks over Posner’s more than thirty years on the United States Court of Appeals for the Seventh Circuit, and even other judges from that court.”

“Richard Posner is a comprehensive and accessible account of a unique judge who, despite never having sat on the Supreme Court, has nevertheless dominated the way law is understood in contemporary America.”

 → See The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions (Dec. 29, 2014)

℘ ℘ ℘

Three days after the release of the Oxford biography, Harvard University Press will release Divergent Paths: The Academy and the Judiciary by Judge Posner.  The 350-page book (he has done some 40 or so of them) will also sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.”

“The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.”

“Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.”

℘ ℘ ℘

  For more on Posner, see The Complete Posner on Posner SeriesConcurring Opinions (12 postings, Nov. 24, 2014 – Jan. 5, 2015)

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Looking Back — Francis Biddle, Censorship & the “Biddle List”

War threatens all civil rights. Francis Biddle, December 15, 1941

I was reading Sam Walker’s Today in Civil Liberties History (a daily historical calendar — quite good!) when I came upon this entry for today, circa April 14, 1942:

Attorney General Biddle OKs Censoring Father Coughlin’s Social Justice Magazine

“In a letter to Postmaster General Frank Walker on this day, Attorney General Francis Biddle (1886-1968) proposed banning the magazine Social Justice from the mails. Social Justice was the publication of Father Charles Coughlin, a Catholic priest in the Detroit area, who in the late 1930s became a public, ultra-conservative critic of President Franklin D. Roosevelt.”

Unknown“When the U.S. entered World War II, Coughlin became a critic of the war effort, in part because he was anti-Semitic. Coughlin’s criticisms were the reasons for Biddle’s censorship proposal. In the end, the Post Office did bar Social Justice from the mails. It was one of the relatively rare instances of suppression of dissent during World War II . . . .” (See Pittsburgh Post-Gazette, April 15, 1942 story here.)

Biddle, of course, was the one who had been a secretary to Justice Holmes (1911-1912), assistant to the U.S. Attorney (E-Dist., PA), chairman of the NLRB (1934-35), Third Circuit Judge (1939-1940), U.S. Solicitor General (1940), U.S. Attorney General (1941-45), and later a judge on the International Military Tribunal at Nuremberg (1945-1946) (Herbert Wechsler served as his main assistant), among other things. Biddle also wrote a biography of Holmes — Mr. Justice Holmes (1942), among other books.

Francis Biddle

Francis Biddle

One more biographical note: he was a half second cousin four times removed of James Madison.

As recounted in a Wikipedia entry, “[d]uring World War II Biddle used the Espionage Act of 1917 to attempt to shut down ‘vermin publications.’ This included Father Coughlin’s publication entitled Social Justice. Biddle has also been ‘credited’ with the creation of what became known later as the ‘Attorney General’s List of Subversive Organizations.’ In fact, this list was originally known as ‘The Biddle List.'”

“In the Biddle List, eleven front groups originating in the Communist Party of the United States of America (CPUSA) were singled out as being ‘subversive’ and under the control of the Soviet Union. Unlike the later, more infamous Attorney General’s List of Subversive Organizations, which contained both left and right-wing organizations, the Biddle List contained only left-wing organizations as well as civil rights organizations tied to the CPUSA.”

Biddle List (1941): 

Contrast Francis Biddle, Remarks at the Dedication of the Thomas Jefferson Room, Library of Congress, December 15, 1941, on the occasion of the 150th Anniversary of the Bill of Rights. Here is an excerpt from those remarks:

War threatens all civil rights; and although we have fought wars before, and ourpersonal freedoms have survived, there have been periods of gross abuse, when hysteria and hate and fear ran high, and when minorities were unlawfully and cruelly abused. Every man who cares about freedom, about a government by law — ­and all freedom is based on fair administration of the law — must fight for it for the other man with whom he disagrees, for the right of the minority, for the chance for the underprivileged with the same passion of insistence as he claims for his own rights. If we care about democracy, we must care about it as a reality for others as well as for ourselves; yes, for aliens, for Germans, for Italians, for Japanese, for those who are vdth us as well as those who are against us: For the Bill of Rights protects not only American citizensbut all hunlan beings who live on our American soil, under our American flag. The rights of Anglo-Saxons, of Jews, of Catholics, of negroes, of Slavs, Indians — all are alike before the law. And this we must remember and sustain — ­ that is if we really love justice, and really hate the bayonet and the whip and the gun, and the whole Gestapo method as a way of handling human beings.

As far as I can tell, there has been no book-length biography of Francis Biddle, which strikes me as odd. Such a biography is long overdue and Biddle is certainly deserving of one.

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FAN 55.1 (First Amendment News) “American Sniper” Cancelled at U. Michigan — part of “speech-destroying storm” says Floyd Abrams

UnknownAccording to a news report in the Michigan Daily, a showing of Clint Eastwood’s box-office blockbuster American Sniper has been cancelled at the University of Michigan.

“The Center for Campus Involvement announced Tuesday afternoon they would cancel a planned showing of American Sniper at UMix following a student petition over the depiction of certain communities in the film. . [T]he organization said the choice was made in response to concerns raised by students about the film in the petition.”

Unknown“‘Student reactions have clearly articulated that this is neither the venue nor the time to show this movie,’ the statement read. ‘We deeply regret causing harm to members of our community, and appreciate the thoughtful feedback provided to us by students.'”

“Mekkaoui, who is a a member of Students Allied for Freedom and Equality and the Middle Eastern and Arab Network on campus, said she found the choice of film disconcerting because of its depictions of the Iraq War and residents of the Middle Eastern and North African region. . . ‘As a student who identifies as an Arab and Middle Eastern student, I feel that ‘American Sniper’ condones a lot of anti-Middle Eastern and North African propaganda,’ Mekkaoui said.”

100toys62Writing in The Daily Caller, Rachel Stoltzfoos reports that “instead of showing American Sniper, The Center for Campus Involvement will instead show Paddington Bear at the event Friday, which is part of a program dedicated to providing students with alcohol-free Friday nights.”

Ms. Stoltzfoos also noted that “conservative students started their own petition in response to a decision Tuesday by The University of Michigan at Ann Arbor to cancel a planned screening of American Sniper after a few hundred students said the film made them feel uncomfortable and unsafe. . . So far the petition has 111 signers. ‘[American Sniper] is not anti-Muslim by any means,’ UM YAF chapter Chairman and national board member Grant Strobl told The Daily Caller News Foundation. ‘It’s anti-radical Islam and that’s something that all religions — Muslims, Christians and everybody — can agree on, because our troops are fighting overseas for the freedom of all people.”

In response to the cancellation, Floyd Abrams, a noted First Amendment lawyer, stated: “Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

See also:

  1. Carol Noah, “Student launches petition to reverse decision to cancel UMix film showing,” April 8, 2015
  2. Ibrahim Ijaz, “Letter to the Editor: Love for all, hatred for none,” Feb. 15, 2015
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FAN 55 (First Amendment News) Another Sign Case Comes to the Court

The “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.” — Justice John Paul Stevens, Kelo v. City of New London (2005)

Screen Shot 2015-04-06 at 11.17.08 PMThe Court currently has a sign case before it, one that was argued on January 12th. That case is Reed v. Town of Gilbert. Now it has another one just presented to it: Central Radio Co., Inc. v. City of NorfolkHere is how the petition opens:

“Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.”

The two issues presented to the Court are:

  1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?
  2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

B y a 2-1 margin, the Fourth Circuit Court of Appeals answered both of those questions “yes” and thus denied the First Amendment claim. Judge Barbara M. Keenan wrote the majority opinion which was joined in by Judge G. Steven Agee with Judge Roger Gregory dissenting in part.

Among other things, in her majority opinion Judge Keenan observed: “It is undisputed here that the plaintiffs’ 375-square-foot banner would comport with the City’s sign code if the banner were reduced to a size of 60 square feet. We recently have deemed such an alternative to be adequate upon comparable facts.’ And also this: “Even assuming, without deciding, that the City’s past refusal to enforce strictly the sign code constituted evidence of discriminatory effect, dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.”

Michael E. Bindas

Michael E. Bindas

Judge Gregory took exception to the majority’s content-discrimination analysis: “Why is it that the symbols and text of a government flag,” he argued, “do not affect aesthetics or traffic safety and escape regulation, whereas a picture of a flag does negatively affect these interests and must be subjected to size and location restrictions? I see no reason in such a distinction.” And also this: “This case implicates some of the most important values at the heart of our democracy: political speech challenging the government’s seizure of private property – exactly the kind of taking that our Fifth Amendment protects against. If a citizen cannot speak out against the king taking her land, I fear we abandon a core protection of our Constitution’s First Amendment. Here, Central Radio spoke out against the king and won.”

From Petitioner’s Brief

     This Court’s review is needed to resolve a longstanding, deep division among the courts of appeals over an important and recurring question of First Amendment law: whether a sign code that, on its face, draws content-based distinctions is nevertheless content-neutral simply because the government disclaims a censorial motive or proffers a content- neutral justification for the code. That question has confounded the lower courts ever since this Court’s sharply fractured decision in Metromedia, Inc. v. City of San Diego (1981), failed to yield an answer. As early as 1994, then-Judge Alito noted this confusion and the need for “the Supreme Court [to] provide[] further guidance.” Rappa v. New Castle Cnty. (3d Cir. 1994) (Alito, J., concurring). Then-Professor Kagan similarly observed that this issue is “calling for acknowledgment by the Court and an effort to devise a uniform approach.” Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup. Ct. Rev. 29, 77 (1992).

     If this Court resolves this issue in Reed v. Town of Gilbert and does so in a way that calls into question the Ninth Circuit’s approach to assessing content neutrality – the same approach the Fourth Circuit followed in this case – then an order granting certiorari, vacating the Fourth Circuit’s decision, and remanding this case will be warranted. If, on the other hand, this Court does not resolve the issue in Reed, it should grant certiorari to resolve it now.

 Counsel for Petitioner: Michael E. Bindas

→ Randy Barnett, “Can a city suppress speech protesting eminent domain?,” Volokh Conspiracy, April 2, 2015

 Press Conference re filing of lawsuit (May 10, 2012) (YouTube)

Howard Kurtz on “Intolerance” Read More

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FAN 54.1 (First Amendment News) Supreme Court: Latest Orders List — Free Expression Cases Remain on Docket

The Court just released its latest orders list and took no action on the pending petitions listed below.

  The next Court Conference is scheduled for April 17th and oral arguments are scheduled for April 20th.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[updated: 4-6-15]

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. ProtectMarriage.com-Yes on 8 v. Bowen
  6. Clayton v. Niska
  7. Pregnancy Care Center of New York v. City of New York 
  8. City of Indianapolis, Indiana v. Annex Books, Inc.
  9. Ashley Furniture Industries, Inc. v. United States 
  10. Mehanna v. United States
  11. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  12. Vermont Right to Life Committee, et al v. Sorrell
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“Agents of Hope”

A few random thoughts inspired by Rabbi Suzanne Singer’s “Judaism & Hope” sermon.

It cannot be denied: To live is to hope – that somehow, against all odds, evil will not triumph; that somehow, in the face of heartless bigotry, hatred will not prevail; and that somehow needless suffering (despite the toll of human misery) will abate.  To hope for a better plight is as vital to the human spirit as white blood cells are to the human body.

But what is this hope, and how is it to be realized, if at all?

Hope is struggle. It is more than a child’s naive wish, and it is quite different from an optimist’s blind faith in a benign future. It is a commitment to change – a change for a better world. It is active rather than passive; it seeks to move the world rather than wait to be moved by it. Seize the day, push the rock!

Hope trades in chance . . . in the chance that at a particular pinpoint in time life may get better. Thus our hope must be humble and patient; we must understand that the future may not come in time to save us. Hence our hope must be sober-minded; it must not be unduly romantic; it must not trade in the intoxicating promises of panacea.

Hope is a process; it is that spirit within us that struggles on and on in the face of discouraging prospects depressing enough to turn a man to stone. And why engage in such seemingly Sisyphean acts? Because to live is to struggle, not thoughtlessly, but with a commitment to justice and kindness and all other things that improve the human condition. Struggle gives fiber to hope.

Heed his words: I do not give the human race more than one chance in a thousand, but I would be less than a man if I did not act on that chance. So wrote Albert Camus, the Resistance fighter who in the darkest of moments did not lose hope in the cause of humankind to be better than it was at a time when malice and barbarity seemed unconquerable. By hope’s standards, had evil prevailed, Camus’ hope would not have been any less genuine or important. For what counted most was the struggle, the will to improve the plight of so many millions uprooted from the soil that gives life meaning.

The moral: Hope is a prayer that may go unanswered in one’s lifetime, but it is an act of the highest human order. In its noblest form, it touches that something buried deep within us that denounces evil and affirms goodness. If hope dies today, it does so in the belief that it will inspire yet more hope for tomorrow, which alas, may usher in the springtime of a new season of humanity.

As an aspiration worthy of our shared respect, hope must be something other than a commitment to greed. To be sure, one can hope to become a billionaire and dedicate herself to that quest, and to do so for no more than the sake of pride and pleasure. But the hope of which I speak is not the hope of avarice. It deals not in the wheel of roulette.

If hope is to be a virtue, it must be virtuous; it must speak to the best in each of us. Take, for example, the woman who amasses a fortune with the hope of rebuilding a temple leveled by a terrorist’s bomb or with the hope of sponsoring a group to repair the limbs of wounded soldiers – that kind of hope converts money into humanity.

There is a line in Rabbi Singer’s sermon that touched a nerve in me; it is this: Hope, not out of victory and success, but hope out of defeat and despair. We turn to hope because we cannot abide despair; our psyches simply cannot endure the hopeless specter of a Nietzschean nightmare cast eternally. By that measure, there is something therapeutic in hope, and that something helps us go on with our lives. Hope is an antidote to the melancholy that can rob one of the will to live.

To echo Rabbi Jonathan Sachs’s words: To be a Jew is to be an agent of hope in a world seriously threatened by despair. How heartening those words! To that end, may the agents of hope help to remake our world, repair our hearts, repel our fears, and rekindle that spark within us that longs for light. Or to draw from Simone Weil, “there is only one fault: incapacity to feed upon light . . . .”

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FAN 54 (First Amendment News) Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case

Robert S. Reynolds (credit: Richmond Times-Dispatch)

Robert Reynolds (credit: Richmond Times-Dispatch)

Somehow this one slipped by me. Thanks to Joseph P. Rapisarda, Jr. (the county attorney in the case), however, I now know of it and of Chief Judge William Traxler’s opinion in Reynolds v. Middleton (4th Cir., Feb. 24, 2015).

The case involves a homeless man (Robert S. Reynolds) who begged for money in Henrico County, Virginia. (A panhandling First Amendment case is currently pending before the Supreme Court: Thayer v. City of WorcesterThe petition was distributed for Conference of January 9, 2015.)

In a world where commercial speech is the coin of the realm, Mr. Reynolds looked to the First Amendment to aid the cause of his life-sustaining speech. To that end, he challenged a newly enacted local ordinance, which provides:

Sec. 22-195. Distributing handbills, soliciting contributions or selling merchandise or services in highway.

(a) It shall be unlawful for any person while in the highway to:

(1) Distribute handbills, leaflets, bulletins, literature, advertisements or similar material to the drivers of motor vehicles or passengers therein on highways located within the county.

(2) Solicit contributions of any nature from the drivers of motor vehicles or passengers therein on highways located within the county.

(3) Sell or attempt to sell merchandise or services to the drivers of motor vehicles or passengers therein on highways located within in the county.

(b) For purposes of this section, the term “highway” means the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.

Brian Burgess

Brian Burgess

At first he was unsuccessful; his case was dismissed by a federal judge. Thanks to the appellate work of Brian Timothy Burgess (a former Sotomayor law clerk) and the ACLU, Reynolds did rather well in the Fourth Circuit (see CBS video clip). Here are a few excerpts from Chief Judge Traxler’s opinion:

  1. There is no question that panhandling and solicitation of charitable contributions are protected speech. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013). There is likewise no question that public streets and medians qualify as “traditional public forum[s].” Id. at 555; see Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en banc) (“Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora.”).
  2. The government’s power to regulate speech in a traditional public forum is “limited, though not foreclosed.” Clatterbuck, 708 F.3d at 555. Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny — that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert. denied, 135 S. Ct. 183 (2014). A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
  3. In our view . . . the Supreme Court’s recent decision in McCullen v. Coakley clarifies what is necessary to carry the government’s burden of proof under intermediate scrutiny. McCullen involved a First Amendment challenge to a Massachusetts buffer-zone statute that prohibited standing on a “public way or sidewalk within 35 feet of an entrance or driveway” of an abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench trial on stipulated facts, the district court upheld the statute, and the First Circuit affirmed. The Supreme Court applied intermediate scrutiny — the same standard we apply in this case — and reversed.
  4. We draw several lessons from the Court’s decision in McCullen. First, the Court’s discussion of whether the statute furthered an important governmental interest confirms that the existence of a governmental interest may be established by reference to case law. Second, the Court’s flat declaration that “[t]he buffer zones clearly serve these interests” indicates that objective evidence is not always required to show that a speech restriction furthers the government’s interests. Finally, the Court’s rejection of the Commonwealth’s narrow-tailoring arguments makes it clear that intermediate scrutiny does indeed require the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary; argument unsupported by the evidence will not suffice to carry the government’s burden.

The Chief Judge concluded his opinion as follows:

Although we have concluded that the County’s evidence failed to establish that the Amended Ordinance was narrowly tailored, we believe the proper course is to vacate and remand. Our analysis in this case was driven by the Supreme Court’s decision in McCullen, which was issued after the district court’s ruling in this case. As we have explained, McCullen clarified the law governing the evidentiary showing required of a governmental entity seeking to uphold a speech restriction under intermediate scrutiny. Because the parties did not have McCullen’s guidance at the time they prepared their cross — motions for summary judgment, we believe the County should have an opportunity to gather and present evidence sufficient to satisfy McCullen’s standard. Accordingly, we hereby vacate the district court’s order granting summary judgment to the County and remand for further factual development and additional proceedings as may be required (footnote omitted).

Note: Since “the Henrico ordinance has not been invalidated,” said Burgess, “panhandlers still could be criminally charged.”

See A. Barton Hinkle, “There’s No Begging Exception to the First Amendment,” Reason.com, March 4, 2015

 See Arizona Senate Debates Panhandling Bill,” NAZToday, March 25, 2015 (YouTube video)

See also Sara Rankin, “A Homeless Bill of Rights,” Seton Hall Law Review (forthcoming, 2015).  

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