Category: Constitutional Law


Hoyt v. Florida Oral Argument

I mentioned in a prior post that I’m listening to the Supreme Court oral arguments that are now available on the Oyez Project at Chicago-Kent.  One that was high on my list to listen to was Hoyt v. Florida, a 1961 decision that upheld a Florida law that only made jury service mandatory for men.  Hoyt was convicted of killing her husband by an all-male jury, on her argument on appeal was that Florida’s statute, which said that women had to affirmatively volunteer to be in the venire, denied her a fair trial.  The Court rejected this challenge unanimously.

The argument is fascinating because it contains a mix of modern gender discrimination arguments and traditional stereotypes.  Hoyt’s attorney made some claims that sound familiar (women suffered from broad discrimination, we would be skeptical of a man convicted by an all-female jury for killing his wife), but he also made the curious choice to say that his co-counsel who wrote most of the brief was a woman but he was arguing the case.  He also was more or less forced to rely on gender stereotypes (e.g., women are more emotional) to argue why women should be on juries.

Anyone, it’s well worth a listen.


FAN 80 (First Amendment News) Coming Soon: Philippa Strum’s Book on Whitney v. California

Those familiar with American legal history, including its free-speech history, know the name Philippa Strum. The senior scholar at the Wilson Center is the author of, among other books, Louis D. Brandeis: Justice for the People (1984) and When the Nazis Came to Skokie (1999). Her latest book comes out early next month and is entitled Speaking Freely: Whitney v. California and American Speech Law. The book is being published by the University Press of Kansas and is part of the Landmark Law Cases and American Society. Here is the publisher’s abstract of the book:

51N0zk7v72L._SX319_BO1,204,203,200_“Anita Whitney was a child of wealth and privilege who became a vocal leftist early in the twentieth century, supporting radical labor groups such as the Wobblies and helping to organize the Communist Labor Party. In 1919 she was arrested and charged with violating California’s recently passed laws banning any speech or activity intended to change the American political and economic systems. The story of the Supreme Court case that grew out of Whitney’s conviction, told in full in this book, is also the story of how Americans came to enjoy the most liberal speech laws in the world.”

“In clear and engaging language, noted legal scholar Philippa Strum traces the fateful interactions of Whitney, a descendant of Mayflower Pilgrims; Supreme Court Justice Louis D. Brandeis, a brilliant son of immigrants; the teeming immigrant neighborhoods and left wing labor politics of the early twentieth century; and the lessons some Harvard Law School professors took from World War I-era restrictions on speech. Though the Supreme Court upheld Whitney’s conviction, it included an opinion by Justice Brandeis — joined by Justice Oliver Wendell Holmes, Jr. — that led to a decisive change in the way the Court understood First Amendment free speech protections. Speaking Freely takes us into the discussions behind this dramatic change, as Holmes, Brandeis, Judge Learned Hand, and Harvard Law professors Zechariah Chafee and Felix Frankfurter debate the extent of the First Amendment and the important role of free speech in a democratic society. In Brandeis’s opinion, we see this debate distilled in a statement of the value of free speech and the harm that its suppression does to a democracy, along with reflections on the importance of freedom from government control for the founders and the drafters of the First Amendment.”

“Through Whitney v. California and its legacy, Speaking Freely shows how the American approach to speech, differing as it does that of every other country, reflects the nation’s unique history. Nothing less than a primer in the history of free speech rights in the US, the book offers a sobering and timely lesson as fear once more raises the specter of repression.”

Philippa Strum is arguably the leading Brandeis scholar of the last fifty years. Justice Brandeis’s opinion in Whitney v. California is arguably the most inspiring and enduring judicial account ever of the reasons for a strong free speech principle. It seems only natural that Philippa Strum should write the definitive book on Whitney v. California. And she has done just that, uncovering much new material about Anita Whitney and those who prosecuted and defended her. This fascinating book is truly worthy of Brandeis, who relished resourceful factual investigation, instructive analysis, and lucid writing. — Vincent Blasi

Other books in the Landmark Law Cases and American Society series dealing with free speech include:

  1. Whitney Strub, Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression (2013)
  2. Max Lender, Gitlow v. New York: Every Idea an Incitement (2012)
  3. Kermit Hall & Melvin Urofsky, New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press (2011)
  4. Robert Justin Goldstein, Flag Burning and Free Speech: The Case of Texas v. Johnson (2000)
  5. John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (1997)

Guns on Campus — Free Speech Under Fire? 

Justice Scalia in District of Columbia v. Heller: “[The Court’s decision] “should not be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.

Oregon is one of the seven states that now have provisions allowing the carrying of concealed weapons on public post-secondary campuses. (See Auyero commentary below)

* * * *

Guns-and-Free-Speech Tyler Kingkade, “Texas Professors Warn Allowing Guns In Class Will Inhibit Free Speech,” Huffington Post, Oct. 5, 2015

Greg Piper, “‘Ad hominem’ attacks on gun-rights supporters convince University of Texas student to back concealed carry,” The College Fix, Oct. 6, 2015

Mike Spies, “Texas Professor Warns That Guns in Classrooms Could Dumb Down Provocative Lessons,” The Trace, Oct. 6, 2015

Anthony Hennen, “UT chancellor: Removing gun-free zones will “inhibit our freedom of speech,” Red Alert Politics, Oct. 5, 2015

→ Javier Auyero, “What the ‘campus carry’ law means for higher education,” Fortune, Oct. 5, 2015

Jim Vertuno, “University of Texas holds forum on concealed guns on campus,” Washington Times, Sept. 30, 2015

Jennifer Sinor, “Guns on Campus Have Already Curtailed Free Speech,” The Chronicle of Higher Education, Oct. 27, 2014

Court sustains First Amendment claim in occupational licensing case Read More


Joel Gora, The Roberts Court & the Future of Free Speech

Below is a post by a guest blogger, Professor Joel M. Gora. He is on the faculty of the Brooklyn Law School where he teaches constitutional law and related courses and has written extensively on First Amendment issues. He served as a lawyer for the national ACLU for nearly a decade and worked on dozens of United States Supreme Court cases, including many landmark rulings (see e.g., herehereherehere, and here). Chief among them was Buckley v. Valeo (1976). He worked on behalf of the ACLU on most  of the important campaign finance cases to come before the Court. He also served for more than 25 years on the board of directors of the New York Civil Liberties Union and was one of its general counsel. The views expressed here are his own. — rklc

* * * *

The new Supreme Court Term that begins today marks the tenth anniversary of “the Roberts Court,” which reached full complement in January 2006. That was when Associate Justice Samuel Alito joined the Court, which Chief Justice John G. Roberts had been appointed to lead a few months earlier. The resulting coalition of a five-Justice “conservative majority” has had significant impact on the Court’s jurisprudence in a number of areas, and this has been especially evident in its rulings on the crucial First Amendment right of freedom of speech. In my view, “the Roberts Court” may well be the most speech-protective Court in a generation – if not in the Nation’s history – reaffirming and expanding extraordinary protection for free speech in a variety of settings. In the process, the Court has rebuffed numerous attempts by government and its allies to restrict established free speech protections or create new free speech limitations.

Professor Joel Gora

Professor Joel Gora

First, in a series of cases, the most well-known of which is Citizens United v. Federal Election Commission (2010), the Court has been insistent that protecting political speech is at the heart of the First Amendment’s purposes in a democracy and that limits on political spending are limits on political speech and can rarely be justified. The Court’s theory, echoing earlier rulings, is that government restrictions on how much can be spent to speak about politics and government and what individuals or groups can do the spending and speaking are fundamentally anathema to the essence of political freedom of speech and association.

In these campaign finance cases, the Court has also reaffirmed a theme that transcends politics: that another core purpose of the First Amendment is to guarantee that the people, not the government, get to determine what they want to say and how they want to say it. This liberty-affirming concept, which celebrates the autonomy of each person and group and condemns censorship of thought and speech by government, has application well beyond the political realm and guarantees the strongest protection to free speech in a number of settings, including protection for artistic, corporate and commercial speech as well. In all of these areas the Roberts Court has insisted that the First Amendment presumption against government censorship is but another recognition of individual and group freedom.

Applying these principles, the Court has steadfastly refused to declare speech that many deemed socially worthless to be beyond the pale of the First Amendment’s protection. In rejecting government efforts to criminalize depictions of animal cruelty, regulate the sale of violent video games to young people, punish those who lie about receiving military honors, unduly regulate those who protest near abortion clinics, and permit damages to the targets of even hateful and hurtful homophobic slurs and insults, the Court has reaffirmed that it is the individual, not the government, who must judge the worth of such speech. In those cases the Court emphatically refused to expand the very short list of “non-speech” exceptions from First Amendment protection, such as, obscenity and fighting words.

To be sure the Roberts Court has not invariably ruled in favor of free speech claims. It has allowed government, in some circumstances, to censor student speech, government employee speech, certain forms of campaign funding associated with elections to judicial office, and speech supporting terrorist organizations. It has also given government some leeway to control speech on or utilizing government’s own property. But these few exceptions help prove the rule that, outside these few instances, the Court has insisted on preserving the vital individual and societal First Amendment values served by affording the most rigorous protection to free speech.  The same regard for the individual can also found in a number of significant cases where the Court has protected religious freedom against the demands of government, including safeguarding the rights of a church to determine whom to hire as a teacher, a family-held company to resist providing health care insurance against its religious convictions, a Muslim prisoner to wear a beard for religious reasons despite prison security concerns, and an employee to wear a religious head scarf despite a company’s dress code appearance rules.

What does the future hold for free speech in the Roberts Court? The Court’s free speech docket for the upcoming Term is a modest one at this point, though involving an important case about whether non-union public employees can be compelled to pay the union for representing them against their will. Also, the court has just agreed to hear a government employee free speech case. So, time will tell whether the Roberts Court will continue to be the surprisingly powerful voice for free speech that it has become.

Dissenting Justices and prominent legal scholars have suggested that the Roberts Court has gone too far in overprotecting freedom of speech and not properly taking account of, and balancing the needs of, government which have been advanced to justify the particular restrictions on speech at issue. Other critics write off the Court’s free speech jurisprudence as simple right-wing favoritism of the rich and the powerful, insisting instead that the First Amendment should mainly protect just the deserving “lonely pamphleteer” or “soapbox orator” of an earlier era.

Ironically, liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today. The current Court, however, has strongly maintained that the First Amendment must be available to every person or group who would seek to exercise its rights and has refused to means-test free speech protection. In taking that position, the Roberts Court is relying on free speech themes sounded in earlier, more “liberal” eras of the Court and building upon and strengthening the foundational pillars of free speech erected by the great Justices like Holmes, Brandeis, Black, Douglas and Brennan.

And, that is all to the good for one final, troubling, albeit ironic reason.  In a time when the Supreme Court seems to be affording more free speech in its rulings than any predecessor Court has done, in everyday life, these are trying times for free speech. Censorship seems to reign, both at home and abroad, in what sometimes seems to be a war on free speech. Whether it be the instantaneous condemnation and punishment of fraternity members for singing racially offensive lyrics at a social event, the brazen murder of journalists for producing anti-Muslim cartoons and commentary, or the cancelling of celebrity contracts for making offensive remarks or expressing unpopular views, free speech in everyday life seems often under attack and in jeopardy.

Enhanced by technology, and “going viral,” one slip of the tongue, caught on camera or recorder, can ruin an individual’s career or life prospects. Technology has also facilitated unprecedented surveillance of citizens, which can create a new form of chilling effect to suppress criticism of government. And, too often, our campuses, rather than being sanctuaries of free speech, thought and inquiry, are venues for suppression and censorship of “hurtful” ideas.

In the face of these various suppressions of speech, it is imperative that at least where the law is concerned the Supreme Court continues to make it quite clear that free speech must be the rule and government censorship the rare exception.


FAN 79 (First Amendment News) Conduits and Communication: Is “Mere” Transmission Speech? — Gov. Says No in Net Neutrality Case

“[T]here is no real basis for contending that mere transmission of bits is ‘speech.'”

Stuart Minor Benjamin (2014)

Assistant Attorney General William J. Baer

Assistant Attorney General William J. Baer

The above statement (by a former FCC distinguished scholar and now a Duke Law professor) is quoted approvingly in the government’s brief in United States Telecom Association, et al v. Federal Communications Commission. The government began its brief by declaring: “This case is about whether the Federal Communications Commission has the authority to ensure that the Internet, the central means of communication in the 21st Century, remains open to all Americans.” To that end the government’s lead lawyers, William J. Baer and Jonathan Sallet, made the following arguments in Part VI of their brief:

“The Open Internet Rules are Consistent with the First Amendment”

  •  “[T]he rules do not impair broadband providers’ First Amendment rights at all . . . because broadband providers are not acting as speakers but instead as conduits for the speech of others. . . .”
  • “The [FCC] Order does not curtail broadband providers’s free speech rights because providers of Broadband Internet Access Service are not acting as speakers delivering their own messages, but instead serve as conduits for the speech of others.”
  • “For conduct to possess “sufficient communicative elements to bring the First Amendment into play,” it must manifest “an intent to convey a particularized message” and “be understood [as a message] by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal quotation marks omitted). The provision of broadband service lacks these essential  characteristics. . . . Nor is there anything in the record to suggest that companies providing mass-market retail broadband  service as defined in the Order are seeking to convey any particularized message to their users. Instead, when providing Broadband Internet Access Service, broadband providers function (and are understood by their users to function) simply ‘as conduits for the speech of others, not as speakers themselves.'”
  •  “By simply delivering content as requested by their customers, broadband providers are no different from telephone companies or FedEx. See Benjamin, 127 HARV. L. REV. F. at 348-49.”
  • Alamo’s First Amendment challenge thus fails here for the same reason as the challenge in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). In FAIR, universities argued that a law requiring them to allow military recruiters to use their job-recruiting facilities violated the First Amendment by requiring the universities to carry the military’s speech. The Supreme Court unanimously rejected that claim, explaining that the access requirement “regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Id. at 60. Thus, ‘the schools are not speaking when they host interviews and recruiting receptions.’ Id. at 64. Here, as in FAIR, the Open Internet rules ‘regulate[] conduct, not speech,’ because they address only what broadband providers ‘must do . . . not what they may or may not say.’ Id. at 60. The rules therefore fall outside the ambit of the First Amendment.”

On December 4, 2015 the case will be argued in the Court of Appeals for the District of Columbia.

The FCC Order can be found here

→ For links to the various Orders and Briefs  in the case, go here.

Another View re First Amendment Coverage?

Electronic Frontier Foundation & ACLU amicus brief

The [FCC’s] Order implicates the competing First Amendment interests of individual  users to speak and seek speech online, and of ISPs to transmit speech without undue government interference. 

UN Commission Calls for Web Censorship

Caitlin Dewey

Caitlin Dewey

This from Caitlin Dewey writing in the Washington Post: “It may not have intended to, precisely, but the United Nations just took sides in the Internet’s most brutal culture war.On Thursday, the organization’s Broadband Commission for Digital Development released a damning “world-wide wake-up call” on what it calls ‘cyber VAWG,’ or violence against women and girls. The report concludes that online harassment is “a problem of pandemic proportion” — which, nbd, we’ve all heard before.”

“But the United Nations then goes on to propose radical, proactive policy changes for both governments and social networks, effectively projecting a whole new vision for how the Internet could work.”

“Under U.S. law — the law that, not coincidentally, governs most of the world’s largest online platforms — intermediaries such as Twitter and Facebook generally can’t be held responsible for what people do on them. But the United Nations proposes both that social networks proactively police every profile and post, and that government agencies only ‘license’ those who agree to do so. . . .”

The Commission’s Report can be found here.

Reporters Committee Levels Objections to “Right to be Forgotten” Order

UnknownIn a letter dated September 14, 2015, the Reporters Committee for Freedom of the Press and 29 other media and news organizations wrote to President Isabelle Falque-Pierrotin of the Commission nationale de l’informatique et des libertés. Here are some excerpts from that letter:

“The Reporters Committee for Freedom of the Press and the undersigned news and journalism organizations write to express concerns regarding the notice given by CNIL to Google Inc. on May 21, 2015 ordering the company to apply new delisting requirements to all domains of the search engine and not merely to its domains in the European Union. In making its order public, CNIL referred specifically to its desire to ‘inform . . . content publishers . . . of the scope . . . of the right to obtain erasure of personal data.’ It is in that spirit of dialogue that we offer these objections.”

In their letter the groups raised four basic objections:

  1. “CNIL’s action raises concerns about encroachment on speech and press freedoms worldwide as well as on the right of access to information.”
  2. “Mere accessibility of content on the Internet is not a standard; it’s a surrender to an Internet governed by the least protective speech laws around the world.”
  3. “Search engines must be able to notify publishers of delisting,” and
  4. “he CNIL order does not adequately protect other fundamental rights, including the fundamental right of free expression and access to information.”

The groups closed by stating: “We recognize France’s right to weigh the competing interests between promoting personal privacy and data protection and protecting free expression and access to information in a way that reflects its values. But when CNIL seeks to compel Internet users outside of the EU to live with the balance it has struck in this area, it crosses a line and creates an ominous new precedent for Internet censorship that jeopardizes speech and press freedoms worldwide. . . .”

Into the “Weeds” with Posner 

Pic of native Illinois weeds

Pic of native Illinois weeds

Two days ago a Seventh Circuit panel handed down its decsion in Discount, Inn, Inc. v. City of Chicago. In that case a Chicago agency ruled that the Petitioner violated two city ordinances — a weed ordinance and a fencing ordinance. Among other claims, the Petitioner alleged that the weed ordinance “is vague and forbids expressive activity protected by the First Amendment. The concern is that native plants, while sharing with weeds the property of not having to be planted, are, unlike weeds, beautiful and nondestructive when properly managed.”

Photos of said Illinois native plants are included in Judge Richard Posner’s opinion. On that score Judge Posner noted: “A legitimate concern of property owners who grow native plants is that enforcers of the weed ordinance will mistake native plants for ‘weeds,’ an undefined term in the ordinance . . . .” But that point did not save the day for the Petitioner: “Even if we assume (as is plausible) that the weed ordinance does not embrace native‐plant gardens, this can do nothing for Discount Inn, because it does not argue that its properties contain gardens of native or other decorative plants. Instead it argues that the ten‐inch ceiling on weeds violates the free‐speech clause of the First Amendment.”

Pic of community garden in which the gardeners cultivate Illinois native plants,

Pic of community garden in which the gardeners cultivate Illinois native plants

Turning to the merits of the First Amendment issue, Posner observed: “Though plants do not speak, this need not exclude all gardens from the protection of the clause, for the clause has been expanded by judicial interpretation to embrace other silent expression, such as paintings. . . . The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art. . . . But the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”

Posner then turned to his garbage-and-Beethoven argument:

Taken to its logical extreme, the plaintiff’s defense of the weed would preclude any efforts by local governments to prevent unsightly or dangerous uses of private property. Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven’s Fifth Symphony 24 hours a day through outdoor loudspeakers — all in the name of the First Amendment.

[ht: Howard Bashman, How Appealing]

KY Campaign Donations Law Challenged

A recent story in the  Lexington Herald-Leader reported on a new challenge to campaign finance laws, one that relates to political bribes or their equivalent. Here is an excerpt: 

“Republican state Sen. John Schickel and two Libertarian political candidates are suing to overturn state laws limiting campaign donations to $1,000 and prohibiting gifts to legislators from Frankfort lobbyists.”

“The politicians say the laws violate their constitutional rights to free speech and equal protection by restricting their access to people who want to help them. But state regulators say the laws are meant to prevent bribery at the state Capitol. Most were enacted after Operation BOPTROT, an FBI investigation in 1992 that exposed 15 current or former legislators who sold their votes. Don Blandford, the House speaker, was among those sent to prison. . . .”

“They are challenging the state’s $1,000-per-election contribution limit to individual candidates. They also want the court to strike down ethics rules prohibiting Frankfort lobbyists from donating campaign money to legislators or legislative candidates; barring the employers of lobbyists from donating while the General Assembly is in session; and outlawing gifts from lobbyists to legislators, including private meals.”

The case is Schickel v. Dilger (Dist. Ct., E. Dist. KY). The complaint can be found here.

Read More


Voting in Presidential Primaries and Caucuses

A student posed the following question that I thought I’d address:  Is there a federal constitutional right to vote in the presidential nominating contest?  I think that the answer is no. (Suppose a state decided not to have a presidential primary or caucus.  The party bosses could just meet in a room and allocate the delegate’s according to party rules.  Would that violate the Federal Constitution?)

First, there is no right to vote for President.  The Constitution clearly gives state legislatures that right, and the Supreme Court has repeatedly said that there is no individual right to vote here as there is for other offices.  If there is no general right to vote, why would there be one in a party primary or caucus?

Second, there is a long tradition of people not voting for presidential candidates within the two parties.  The Iowa/New Hampshire model of nominating presidents only really got started in 1976, thus I think it would be hard to say that voters have a right to participate in the process.

Now are there any examples of voting restrictions that are specific to a presidential nominating contest that are more likely to be upheld because there is no underlying right to vote?  I don’t think so, but I’m not certain.


Who Wrote This?

Greetings and salutations.  Chasing a toddler around while writing a book has knocked me offline for a while, but I’ve got some posts coming up this week.  Some of them will relate to my Bill of Rights research, as I’ve been grinding my way through hundreds of newspaper articles and periodicals going back to the 18th century to look at how the term was used.

Here is one tantalizing item that I want to discuss.  In September, 1792, an anonymous article “By a Farmer” appeared in a magazine and criticized future Broadway musical star Alexander Hamilton and his policies at the Treasury.  The author opened the article this way:

“As long as the state of America continue under the present form of government, the PEOPLE will have to lament the want of a bill of rights, which would clearly and unequivocally dictate to the legislature its duty, and to the people their rights.”

Anyone see the problem here?  The Bill of Rights was ratified in December 1791.  Evidently Mr. Farmer did not get the memo that this was a bill of rights or that we should celebrate its enactment into law.  The piece then went on to discuss the French Declaration of the Rights of Men, and then commented that the French were a highly enlightened people who:

“Have prefixed a bill of rights to their form of government, not as being applicable to their own situation alone, but as constituting the foundation of every just government.  Had the constitution of the United States a foundation equally firm and equitable; we should not at this day witness the law of the union stained with . . .” [then the author lists several of Hamilton’s initiatives].

What I want to see is if I can determine who the author of this was.  At that time prominent public men often wrote under a pen name.  This one obviously came from a Jeffersonian, but which one?

UPDATE:  The answer is George Logan of Pennsylvania, who earns his 15 minutes of fame as the namesake of the Logan Act.


FAN 78 (First Amendment News) Alan Garten, Trump’s Lawyer, Threatens “Multi-million dollar” Lawsuit for Attack Ads Against His Client

Alan Garten, executive vice president & general counsel of The Trump Organization.

Alan Garten, executive vice president & general counsel to The Trump Organization 

Presidential candidate Donald Trump’s lawyer, Alan G. Garten, is helping his boss retaliate against the Club for Growth’s TV ads attacking Mr. Trump’s record on taxes. According to a New York Times story, Mr. Garten “sent a two-page letter to the group’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies. The threat of litigation comes a week after the group started a $1 million advertising campaign that paints Mr. Trump as a disingenuous politician who intends to impose a huge tax increase if elected president.”

Here are some excerpts from Mr. Garten’s September 21, 2015 letter: “Simply stated, your attack ad is not only completely disingenious, but replete with outright lies, false, defamatory and destructive statements and downright fabrications, which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump ‘supports higher taxes,’ nothing could be further from the truth. To be clear, Mr. Trump’s tax plan, which is scheduled to be released later this wek, supports a lowering of taxes. . . .”

[Video of Club for Growth ad here.]

“In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the Attack Ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.”

Screen Shot 2015-09-22 at 11.17.06 PM

→ David McIntosh replies: “‘Tough guy Donald Trump starts whining when his liberal record is revealed. Trump has advocated higher taxes numerous times over many years, just like he’s advocated for universal health care, the Wall Street bailout and expanded government powers to take private property. “Trump’s own statements prove that our ads are accurate. They will continue to run.'”

Mr. Garten & His Client

  • Dec. 27, 2012 letter from Mr. Garten threatening to sue online petition organizer re campaign urging Macy’s  to “dump Trump” (US News & World Report story here)

Alan Garten: “Donald Trump is no bigot, he’s no racist, yet that’s what the accusations are.  Mr. [Angelo] Carusone basically says this is not about Donald Trump, it’s about Macy’s. This is all about Donald Trump. Mr. Carusone is basically trying to suppress Donald Trump’s free speech rights. . . He’s trying to suppress free speech by targeting Mr. Trump’s business partners and pressuring them through . . . bullying and mob-like tactics.” (full audio here

  1. NY ethics board drops Trump complaint about attorney general,” Associated Press, September 1, 2015
  2. Trump delivers on promise to sue chef Jose Andres,” Politico, August 1, 2015
  3. Donald Trump still battling lawsuits from defunct Trump University,” CBS/6, July 24, 2015
  4. Donald Trump’s lawyer: NBC in ‘breach’ on Miss Universe contract, CNN, July 5, 2015
  5. Lawsuit accuses Donald Trump of deceiving students,” CBS Money Watch, October 31, 2014
  6. Trump GC Must Give Deposition In D&O Sanctions Fight,” Law360, March 19, 2014

* * * 

  See also “7 times Trump has sued (or threatened to sue) over his wealth and brand,” Yahoo Finance, July 16, 2015
 See also “The Story of Donald Trump’s lawsuit against Bill Maher Over An Orangutan Joke,” YouTube, July 7, 2014 (see here, too)


Old or Modern Whig?  

Photo-illustration by Bobby Doherty. Trump photograph by Michele Asselin/Contour by Getty Images; Wig Styling by Sharelle Roberts for Raffaele Mollica; Body-double casting by Impossible Casting.

Photo-illustration by Bobby Doherty. Trump photograph by Michele Asselin/Contour by Getty Images; Wig Styling by Sharelle Roberts for Raffaele Mollica; Body-double casting by Impossible Casting.

EFF & ACLU file Amicus Brief Supporting Net Neutrality 
The case is U.S. Telecom Association v. FCC EFF. Here are some excerpts from the EFF’s press release:

“The Electronic Frontier Foundation (EFF) is asking a federal appeals court to approve Federal Communications Commission (FCC) net neutrality rules that prevent Internet service providers from interfering with and censoring content on the Web. U.S. telecommunication providers sued the FCC in Washington D.C. federal circuit court after the FCC published the rules, called the Open Internet Order, earlier this year. Among other things, service providers and their supporters argue that the order strips telecom companies of control over which speech they transmit.”

“In an amicus brief filed in the case today, EFF and the American Civil Liberties Union (ACLU) explain that the order is an appropriately-tailored measure that protects the Internet’s open and robust  “marketplace of ideas” without placing excessive or inappropriate restrictions on telecommunications providers or regulating their speech or messages.”

Among other things, the EFF/ACLU amicus brief argues:

  1. The Internet Was Built on Principles of Neutrality
  2. The Internet Is Now the Core Platform for Free Speech and Access to Knowledge.
  3. Permitting ISPs to Act as Gatekeepers Threatens Free Expression and Innovation.
  4. The BIAS Market Is a Dysfunctional, Government Enabled Oligopoly.
  5. First Amendment Principles Weigh in Favor of the Open Internet Order.
  6. The Order Constitutionally Regulates ISPs in Their Role as Conduits for Internet Speech.
  7. The Open Internet Order Is Facially Content Neutral and Survives Intermediate Scrutiny.
  8. The Primary Guideposts for Any “Unreasonable Interference” Analysis Should Be Free Expression and Application Agnosticism.
[ht: Josh Blackman]

Read More

Greene & Kesselheim vs. Kardashian

Jeremy Greene and Aaron Kesselheim have a fascinating piece on the new challenges facing the FDA as selfie-driven marketing reaches Instagram. After promoting an anti-nausea drug (for morning sickness, not in anticipation of celebrity-phobic viewers), Kardashian had to follow up with the following “corrective advertisement:”

#CorrectiveAd I guess you saw the attention my last #morningsickness post received. The FDA has told Duchesnay, Inc., that my last post about Diclegis (doxylamine succinate and pyridoxine HCl) was incomplete because it did not include any risk information or important limitations of use for Diclegis.

As Greene and Kesselheim observe:

The rise of social media has raised a parade of new questions for the agency: How is it supposed to monitor person-to-person pharmaceutical recommendations? Can something be considered an advertisement if it’s only 140 characters long? Who is responsible for the accuracy of tweets about a drug? But this isn’t the first time evolving technology has forced the FDA to rethink its role. Before Instagram, television advertising was once new; before television, radio. Since the agency’s founding, its ability to regulate drugs has been consistently challenged by new forms of communication.

For more on the controversy, check out The Week in Health Law, where Nicolas Terry and I discuss the case with Kesselheim. And don’t worry, it’s not all about Kardashians–we also cover a new study of ACOs, proposed budget cuts for AHRQ, worry over unintended consequences of readmission penalties, and EHR gag clauses (and developer codes of conduct).


Happy Constitution Day!

Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution — of whatever race, creed or persuasion.

Chambers v. Florida, 309 U.S. 227, 241 (1940).


FAN 77 (First Amendment News) NPR & Other Press Groups Oppose Pentagon’s New “Law of War” Manual

Screen Shot 2015-09-14 at 11.55.14 PMThe report is titled Department of Defense War Manual, which was relased last June. The 1,176 page, 297 footnoted document is dense and stocked full of military jargon. But Michael Oreskes, the senior vice president for news and editorial director at National Public Radio, has plowed through it and took strong exception to some of its claims. In an August 19, 2015 letter to Secretary of Defense Ashton B. Carter, Mr. Oreskes began by stating: “A country that protects its journalists, protects the truth. The Department of Defense’s recently issued Law of War Manual fails to do that.” Among other things, Mr. Oreskes complained that:

  • “The document creates dangerous ambiguity around the collection of information for use in reporting.”
  • “The Manual does not explain the distinction between newsgathering and spying except to note vaguely that journalists should “act openlyand with the permission of relevant authorities” and that they should present “identification documents” to prove they are journalists.”
  • “The Manual, as it is currently drafted, might be read to empower governments to judge for themselves whether a U.S. journalist’s work is spying, and to punish the journalist accordingly.”

In a story by Benjamin Mullin, writing in Poynter, it was also repaired that “several other news organizations, including The New York Times, The Associated Press and ABC News, expressed disapproval of certain things in the Manual. “Writing for The New York Times, editorial board member Ernesto Londono said a possible Pentagon decision to revise the manual “can’t happen quickly enough.” In that regard, Mr. Londo noted:

Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms. Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists — including Americans — is broadly in line with the standards set by the United States government. . . .

Even more disturbing is the document’s broad assertion that journalists’ work may need to be censored lest it reveal sensitive information to the enemy. This unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point. . . . 

A spokesman for the National Security Council declined to say whether White House officials contributed to or signed off on the manual. Astonishingly, the official pointed to a line in the preface, which says it does not necessarily reflect the views of the “U.S. government as a whole.”

See also “U.S. Department of Defense manual allows some journalists to be held as ‘belligerents’,” Associated Press, August 25, 2o15 (“‘I’m troubled by the label ‘unprivileged belligerents,’ which seems particularly hostile,’ said Kathleen Carroll, AP’s executive editor. ‘It sounds much too easy to slap that label on a journalist if you don’t like their work, a convenient tool for those who want to fight wars without any outside scrutiny.'”)

[hat tip: Ashley Messenger]

FCC Defends Implementation of Net Neutrality Rules

76582a77da3d81000ca6d19ea20e5924This from Jon Brodkin at ArsTechnica: “The Federal Communications Commission yesterday said it did not violate the First Amendment rights of Internet service providers when it voted to implement net neutrality rules.”

“Broadband providers who sued to overturn the rules claim their constitutional rights are being violated, but the FCC disputed that and other arguments in a filing in the US Court of Appeals for the District of Columbia Circuit. . . .”

“‘Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested,’ the FCC wrote. ‘When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider.'”

“First Amendment objections have been briefly raised by AT&T, CenturyLink, CTIA-The Wireless Association, and the United States Telecom Association. The argument that net neutrality rules violate broadband providers’ First Amendment rights was also made by Verizon back in 2012.”

“In the current case, the First Amendment objections have been made most forcefully by Alamo Broadband, a small provider in Texas. Alamo argued that ISPs ‘exercise the same editorial discretion as cable television operators in deciding which speech to transmit.'”

See here re FCC’s Net Neutrality order.

Jonathan Keane, “Net neutrality doesn’t violate ISPs’ first amendment rights says FCC,” Digital Trends, Sept. 15, 2015

Arkansas AG Calls on Court to Overrule Abood Read More