Category: Constitutional Law


Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

Testing Our Tolerance Read More


FAN 82 (First Amendment News) Smolla & Abrams to file First Amendment brief in Redskins trademark case

The case is Pro-Football, Inc. v. Blackhorse, which is currently pending in the United States Court of Appeals for the Fourth Circuit. The stakes in that game will soon get higher as two noted First Amendment players prepare to file a brief in the case — Dean Rod Smolla and Floyd Abrams. Their amicus brief is being filed today on behalf of “professors who regularly engage in legal scholarship and litigation matters germane to the First Amendment, including the intersection of freedom of speech and intellectual property.”

As District Court Judge Gerald Bruce Lee described it in his opinion, this “case concerns Blackhorse Defendants’ petition to cancel the registration of six trademarks owned by PFI on the grounds that the marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans and bring them into contempt or disrepute under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), at the time of their registrations (1967, 1974, 1978, and 1990).”

UnknownDistrict Court Ruling: As to the Pro-Football Inc’s (PFI) First Amendment claims, Judge Lee ruled: “With regard to PFI’s First Amendment challenge, the Court DENIES PFI’s Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second, the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny.”

Enter Smolla & Abrams: First, they argue that “Section 1052(a) of the Lanham Act is a brazen exercise in viewpoint discrimination. On its face and as its animating purpose, it exists to discriminate against expression perceived by the government to be disparaging and offensive. Under the strict scrutiny standard applicable to content and viewpoint discrimination, the law cannot stand in light of the bedrock principle underlying the First Amendment that government may not penalize speech merely because it is deemed offensive or disagreeable. These principles apply to laws that burden speech just as they apply to laws that fully censor it.”

Dean Rod Smolla

Dean Rod Smolla

Next, they maintain that “Section 1052(a) is plainly unconstitutional unless some alternative First Amendment doctrine is applicable exempting the statute from the normal strictures forbidding viewpoint discrimination. Several have been posited. One claim is that trademark registration is ‘government speech’ and thus outside the provenance of the First Amendment. A second argument is that trademark registration is a government benefit, not a right, and that what appears to be viewpoint discrimination is merely the government acting to shape the contours of a benefit program. And finally, it may be claimed that regulation of disparaging trademarks constitute a valid regulation of commercial speech. None of these arguments are sound.”

In response, Smolla & Abrams offer four main arguments:

  1. “A decision by the government to deny trademark registration does not fit either the theoretical justifications that support the government speech doctrine, or the doctrinal tests that have emerged to define the doctrine’s contours. . . .”
  2. “Trademark registration is similarly outside the doctrinal definition of government speech. Trademarks are understood in society as the identifiers of private speakers. Trademarks are not created by the government, aligned with the government, or functionally used as “government IDs” or platforms for government expression. . . .”
  3. “The doctrine of unconstitutional conditions bars the government from denying government benefits to speakers on the condition that those speakers surrender First Amendment rights they would otherwise enjoy. While the unconstitutional conditions doctrine does not bar government from using the leverage of a public benefits program to prevent discriminatory conduct (as, for example, with gender discrimination provisions of Title IX), § 1052(a) is not an anti-discrimination provision, and the Washington Redskins franchise does not stand accused of any discriminatory conduct. . . . ,” and
  4. “Section 1052(a) cannot be defended as a valid regulation of commercial speech. Although trademarks are commercial identifiers, and regulation of trademarks are often regulations of commercial speech, there is no commercially related purpose underlying § 1052(a)’s prohibition on disparaging, scandalous, or contemptuous marks. It is entirely the non-commercial elements of the communication that § 1052(a) regulates, the elements deemed by the government to be culturally and politically offensive. The cancellation of the Redskins mark is thus not in any authentic sense commercial regulation at all, and ought not be analyzed under commercial speech doctrine.”

Disclosure: I signed onto the Smolla-Abrams amicus brief. 

Related Stories 

Alex Christian, “Is There Hope for the Washington Redskins’ Trademarks After All?,” Davis Brown, Oct. 22, 2015

California governor bans Redskins name at public schools,” Associated Press, Oct. 13, 2015

→ AAron Kraut, “Debate Over Washington Redskins Name Comes to County Elementary School,” Bethesda Magazine, Oct. 26, 2015 (“After a parent said the school system should bar staff and students from wearing team garb, other parents defended the name.”)

Steph Bazzle, “ACLU On Redskins’ Trademark Case: Government Shouldn’t Force The Team To Change Its Name,” Inquisitr,  March 8, 2015

Begging & the First Amendment

Dec. 12, 2011. Boston, MA. Staff photos of the staff of the American Civil Liberties Union of Massachusetts. © 2011 Marilyn Humphries

Matt Segal
© 2011 Marilyn Humphries

Here is an op-ed by Matthew Segal (of the Massachusetts ACLU) concerning the rights of the poor to engage in life-sustaining speech (aka begging). What follows are excerpts from Mr. Segal’s  op-ed, which recently appeared in The Guardian:

“All across America, municipalities have criminalized begging. This is bizarre. It is now clearly established that the first amendment protects people who express themselves by spending millions of dollars. How can it fail to protect people who express themselves by asking for one dollar?”

“Many cities have suggested that begging fails to express ideas worthy of the first amendment. Not so. Requests for charity – whether from homeless persons, Salvation Army volunteers or firefighters – express need. They do so inherently and sometimes profoundly. . . .”

When we ban begging we take away the first amendment rights of the poor.

“Anti-begging measures contradict not one but two recent supreme court decisions: McCullen v Coakley, which invalidated a Massachusetts law creating buffer zones around reproductive health clinics, and Reed v Town of Gilbert, which invalidated an Arizona sign code because its rules hinged on what each sign said. So zones that prohibit begging are unconstitutional both because anti-speech buffer zones are problematic under McCullen, and because singling out one type of speech – begging – is content-based, like the sign code struck down in Reed. . . .”

“[B]eyond case law, the more fundamental issue is that begging codes risk apportioning first amendment rights by wealth. The poor cannot buy TV ads. They cannot afford lobbyists. They are not trending on Twitter. So it is cruel and unfair to say that governments can safely regulate words, including requests for charity, spoken by the poor but not by the wealthy.”

“If censorship cannot be justified by worries about animal cruelty or money in politics, then governments should not be permitted to ban begging just because it makes people feel icky.”

Anti-panhandling laws are just another form of unpopular speech. And the point of the First Amendment is keep government from suppressing what is unpopular or even despised.  — Robert Corn-Revere, Oct. 26, 2015

 Police Officer Uses First Amendment to Protest “Scam” Panhandler (see video here

Campus Free-Speech Watch Read More


FAN 81.1 (First Amendment News) Floyd Abrams, “Beyond the Reach of Government”

Floyd Abrams

Floyd Abrams

The following remarks were delivered at Yale Law School on Saturday, October 24, 2015 on the occasion of Floyd Abrams receiving the Yale Law School Association Award of Merit. Previous recipients include Supreme Court Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Secretary Hillary Rodham Clinton. The remarks below are posted with Mr. Abrams’ permission.  

* * * * 

My ticket of admission to this party today appears to be the First Amendment so I thought I’d distill all my learning on the subject into a five minute presentation. Draw what conclusions you choose from my presumption in doing so – the notion of a five-minute tour of the First Amendment may be a first in and of itself – but here we go.

First, we’re lucky, really lucky, to have it. Not just because it’s a good thing that we have a First Amendment, although of course it is, but because we came so perilously close to not having it at all. It’s worth recalling that the states that met in Philadelphia in 1789 to draft a Constitution unanimously voted not to have a bill of rights at all. Why, Alexander Hamilton wrote in Federalist 84, “declare that things should not be done which there is no power to do”? “Why,” he asked, “should it be said that liberty of the press should not be restrained when no power is given by which such restrictions may be imposed?” Only the unyielding position by Jefferson and others that, in Jefferson’s words, “a bill of rights is what the people are entitled to against every government on earth” led to the adoption of any bill of rights, let alone one with a First Amendment.

imagesSecond, for all of its 18th century lineage, the First Amendment may be best understood – I know Justice Scalia would not approve – as a 20th century, even second half of the 20th century, document. It wasn’t seriously cited in any number of Supreme Court opinions as a bulwark against government overreach until the enduring Holmes and Brandeis opinions (often in dissent) in the 1920’s; it wasn’t applied to the states until the 1920’s; and the first federal law held to be unconstitutional based on the First Amendment did not occur until 1965.

Third, the First Amendment is negative in nature. It says “Congress shall make no law” on purpose. It doesn’t promise freedom of the press; it promises that the government will not abridge it. That leaves lots of room for interpretation. But it does not permit the conclusion – sorry about this, Justice Breyer – that “first and foremost, the First Amendment seeks to facilitate self-government” by “encouraging the exchange of information and ideas which are necessary for citizens themselves to shape “public opinion” No.

The First Amendment certainly facilitates self-government. It certainly helps in the shaping of public opinion. But first and foremost, it does so by putting free speech and free press, as Madison put it, “beyond the reach of this Government.”

Over half a century ago, the essayist Norman Cousins put it this way: It is not “that democracy lacks affirmative values. The affirmative values are many and varied, but they all rest on a solid bedrock of restraints upon government.”

Fourth, any bill of rights and any First Amendment is only meaningful if the government it purports to limit is prepared to obey it – to treat it as binding law. Consider this alternative to the First Amendment: “Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and of association.” Not bad, right? But that’s to be found in Article 67 of the Constitution of North Korea, one of the world’s truly despotic, murderous and freedom-destroying nations. Its asserted protection of free speech is a lie, nothing less, since, it is rooted neither in any concept of law, let alone individual liberty.

To return to my beginning: We are a lucky people in so many ways. I am lucky and so are you to have attended this great institution. And we’re all lucky to live in a nation in which freedom of speech is so rightly revered.

© Floyd Abrams, 2015


Constitutional Communication

In 2005, before I was an academic, I started working on an article, now titled Constitutional Communication, about constitutional interpretation. I still have drafts of it dating back to 2006. I have even presented it a couple times over the last decade. I have worked on it throughout that time period, but was never satisfied with it. I’m happy (and relieved) to say that I finally have a completed draft that I have made publicly available. I welcome feedback. Here is the abstract:

Scholars from various normative and positive perspectives endorse the notion that the Constitution is communicative of its meaning. However, there has been little discussion as to what “communication” means in the constitutional context. This Article addresses the communication gap by introducing and applying communication-based concepts and models to constitutional theory. The results of the integration of communication theory into debates about constitutional interpretation are twofold. First, the account in this Article offers a richer framework and vocabulary for ongoing debates about interpretative theory and constitutional meaning. Second, the addition of communication concepts and norms into the debate about constitutional meaning points toward a new approach to interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a pre-selected universal theory, dictates the tools that should be used to analyze it. Significantly, this approach does not seek to negate the dominant theories of constitutional interpretation. In fact, the insights of various originalist and living constitutionalist theories are essential for selecting or synthesizing which interpretive methods are preferable in specific situations. By adopting a flexible, contextual, communication-based approach to identifying the best constitutional meaning in particular cases, we can end the growing fetishization of global interpretive theories and better adapt to the real-world needs of constitutional readers.


What does it mean to vindicate a First Amendment right of free expression?

The following short essay is substituting for this week’s issue of First Amendment News, which will resume next week.

* * * *

In times past if you wanted to get a real sense of the Supreme Court’s record on civil liberties you prepared charts indicating the Justices’ voting record in sustaining a claim of right. Take, for example, C. Herman Pritchett’s The Roosevelt Court: A Study in Judicial Politics and Values (1948). In chapter 9 of that book (p. 254, table 23) he calculated the percentage of times each Justice voted “pro” in civil liberties cases. Likewise in Civil Liberties and the Vinson Court (1954), he did something of the same. In chapter 10 of that book (p. 225, table 10), he calculated the percentage of times each Justice voted to “support . . . libertarian claims.” Justices Frank Murphy and Wiley Rutledge were at the top with a 100% record, while Chief Justice Fred Vinson and Justice Stanley Reed were well below at the bottom.

imagesHelpful as such studies were in past times, I wonder about their value in today’s tug-and-pull First Amendment world of free expression cases. Consider, for example, the record of the Roberts Court in the 41 such cases its has decided since 2006. It has upheld a First Amendment claim of right in 17 of 41 cases (in one case, a per curiam, the Court vacated and remanded the matter). That is a 41% record. But is it a 41% record of vindicating such First Amendment rights?

In one sense, the answer is simple: yes. The parties raised a First Amendment claim and a majority of the Court sustained it. End of story. Or is it?

To raise this question is to raise a more puzzling one. What exactly does it mean to vindicate a First Amendment freedom of expression claim? In today’s volatile atmosphere of supercharged liberalism and fortified conservatism, it can mean almost anything depending on which side of the ideological fence one stands. If you have a collective or “democratic” political-theory view of the Amendment — e.g. like that of Justice Stephen Breyer or Dean Robert Post or Professor Burt Neuborne — then that very much informs your constitutional calculus as to whether a First Amendment right has been vindicated or violated. By that collective constitutional measure, the “fairness doctrine” and he “net neutrality” one are formulas for vindicating First Amendment rights. But that view is radically different from, say, an atomistic understanding of the First Amendment like the one championed by Chief Justice John Roberts, Justice Anthony Kennedy, Floyd Abrams, and the Cato Institute.

Perhaps this is a modern-day version of an old debate. Merely consider the thinking displayed by Justice Byron White in his dissent in Gertz v. Welch (1974): “It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head.” Likewise, analyzing the relationship between the First Amendment and copyright law created a sharp division in the Court in Harper & Row v. Nation Enterprises (1985) owing to the similar problem of a constitutional guaranty at war with itself. What makes such “constitutional tension unusual, as Professor Eugene Volokh once tagged it in a slightly different context,” is the conflict between opposing views of the First Amendment as to what it means to vindicate that right. After all, the tension here is not between the First Amendment and other rights (such as equal protection or a right to a fair trial), but between the First Amendment and itself.

To return to the free-speech mindsets of Breyer, Post , Neuborne and company, cases such as McCutcheon v. FEC (2014) and Citizens United v. FEC (2010) — both of which sustained rights claims — cannot be listed in the “pro” First Amendment column. Worse still, they are listed as “anti” First Amendment rulings. Much the same could be said of Harris v. Quinn (2014) where the Court divided 5-4 along conservative-liberal lines and struck down a compulsory collection of union fees provision. By the same new liberal norm, a case such as Williams-Yulee v. The Florida Bar (2015) (denying a claim of right) might be seen as a “pro” First Amendment case.

Phrased another way, one First Amendment “right” is being swapped out for another but in the same case. Of course, this may seem strange because one thinks of rights on one side and the government on the other. And remember: rights runs against the government. So how can there be any swapping since the government does not have rights? — it has only constitutionally authorized powers.

This riddle might be “solved” in two ways: (1) by the government siding with one conception of First Amendment rights (e.g., with labor unions in compulsory support cases), or (2) by a third party entering a suit to assert its own version of a First Amendment right (e.g., invoking an argument in line with Breyer’s dissent in McCutcheon). To be sure, such moves might, among other things, implicate Article III standing issues. There is also the peculiar specter of the government siding with one conception of First Amendment in order to defeat another. In the old world, the government could abridge a First Amendment right, whereas in the new world it “vindicates” a right (depending on which side of the constitutional divide one is on).

In all of this there is more at work than dethroning a once-recognized constitutional right (as in the case of the demise of economic due process). There is, I think, a move to both defeat certain tenets of First Amendment law (e.g., campaign finance) and to erect others (net neutrality). In the case of the latter, the goal is to develop new notions of First Amendment law (e.g., in the compulsory support of unions line of cases and in the fairness doctrine area).

The old paradigm: Liberals demanded the vindication of First Amendment claims while conservatives tendered reasons why societal interests should trump such claims.

The new paradigm: Conservatives demand the vindication of certain First Amendment claims while liberals tender reasons why societal interests should override such claims.

The result: Conflicting norms of First Amendment rights. In this new constitutional environment, the conflict-of-rights dilemma of the Religion Clauses (Establishment vs Free Exercise) is destined to become the rights-in-conflict dilemma of the Free Speech and Press Clauses.

imagesOf course, this remove-and-restructure constitutional mindset is still in its theoretical phase and has yet to garner any formal recognition by a majority of the current Court. But now that this cat is out of its conceptual bag, might it begin to influence the way lawyers litigate free expression First Amendment cases? (Something of that very thing has already occurred, though not in entirely explicit way, in an amicus brief filed on behalf of Norman Dorsen, Aryeh Neier, Burt Neuborne and John Shattuck (“Past leaders” of the ACLU) in the Williams-Yulee case.)

What are we to make of this new way of considering whether a First Amendment right has been upheld or not? How are we to gauge whether our rights are being vindicated or violated? Will First Amendment law begin to change, both jurisprudentially and operationally?

While you ponder such questions, step back and ask yourself one more question: Have we entered some postmodern maze in which we have lost our constitutional bearing . . . or we are struggling to find our way out in the hope of discovering a new one?


A sequel to this essay appears in the Boston University Law Review Annex symposium and is titled “The Liberal Divide & the Future of Free Speech” (commentary on Danielle Citron’s Hate Crimes in Cyberspace).


A Possible Lawsuit

I want to solicit opinions on the following constitutional question that I am thinking of litigating.

Indiana bans the sale of alcohol in grocery stores on Sundays.  This is an old statute and at this point we are either the only state or one of the few that has such a law.  Every year noises are made in the Legislature about repealing this Sunday alcohol ban, but so far nothing has happened.

It seems to me that this is a classic (if rare) example of an irrational statute that should be declared unconstitutional.  I find it hard to come up with any logical rationale for this.  It’s not as if all alcohol sales are banned here on Sundays (restaurants can sell drinks and so can the stadium where the Indianapolis Colts play).  Why, then, is a distinction made between these vendors and grocery stores?  More broadly, what is the purpose served by banning alcohol sales on a Sunday that isn’t purely religious, which I assume was the original idea?

I would invite groups that want to subject economic regulation to judicial scrutiny to consider litigating this issue.  I’m toying with the idea of doing it myself (largely because I think it would be fun and that I can win), but perhaps I’m missing something.

UPDATE:  Michael Risch correctly points out in a comment that the Court upheld various “Sunday” laws in the 1960s. I would submit, though, that those cases are distinguishable because Indiana’s decision to restrict the sale of one type of good through one type of retail channel cannot survive rational basis review.


State Sovereign Immunity in Another State

In looking over the cases that the Court will be hearing in the next few months, one notable (if less sexy) one is Franchise Tax Board of California v. Hyatt.  Hyatt presents the question of whether a state can deny sovereign immunity to other states in circumstances where the home state gets sovereign immunity in its state courts.  One of the Questions Presented asks the Court to overrule Nevada v. Hall, a 1979 decision holding that states did not have sovereign immunity in the courts of other states.

Hall would appear to be on thin ice.  It is inconsistent with the line of decisions that began in 1996 with Seminole Tribe and give the states broad sovereign immunity under the 11th Amendment. Justice William Rehnquist, who wrote Seminole Tribe as the Chief Justice, dissented in Hall on grounds similar to what he later turned into law on related issues.

If the Court does overrule Hall, it will be interesting to see whether Justices Sotomayor and Kagan decide to embrace Seminole Tribe under stare decisis.  One can expect Justices Ginsburg and Breyer, who dissented in Seminole Tribe, to adhere to the view that this entire line of authority is wrongheaded.  The new Justices have not opined on this question, though, and thus it is possible that Hyatt will reveal whether Seminole Tribe has become settled law or not.


How CalECPA Improves on its Federal Namesake

Last week, Governor Brown signed the landmark California Electronic Communications Privacy Act[1] (CalECPA) into law and updated California privacy law for modern communications. Compared to ECPA, CalECPA requires warrants, which are more restricted, for more investigations; provides more notice to targets; and furnishes as a remedy both court-ordered data deletion and statutory suppression.  Moreover, CalECPA’s approach is comprehensive and uniform, eschewing the often irrational distinctions that have made ECPA one of the most confusing and under-protective privacy statutes in the Internet era.

Extended Scope, Enhanced Protections, and Simplified Provisions

CalECPA regulates investigative methods that ECPA did not anticipate. Under CalECPA, government entities in California must obtain a warrant based on probable cause before they may access electronic communications contents and metadata from service providers or from devices.  ECPA makes no mention of device-stored data, even though law enforcement agents increasingly use StingRays to obtain information directly from cell phones. CalECPA subjects such techniques to its warrant requirement. While the Supreme Court’s recent decision in United States v. Riley required that agents either obtain a warrant or rely on an exception to the warrant requirement to search a cell phone incident to arrest, CalECPA requires a warrant for physical access to any device, not just a cell phone, which “stores, generates, or transmits electronic information in electronic form.” CalECPA clearly defines the exceptions to the warrant requirement by specifying what counts as an emergency, who can give consent to the search of a device, and related questions.

ECPA’s 1986-drafted text only arguably covers the compelled disclosure of location data stored by a service provider, and does not clearly require a warrant for such investigations. CalECPA explicitly includes location data in the “electronic communication information” that is subject to the warrant requirement when a government entity accesses it from either a device or a service provider (broadly defined).  ECPA makes no mention of location data gathered in real-time or prospectively, but CalECPA requires a warrant both for those investigations and for stored data investigations. Whenever a government entity compels the “the production of or access to” location information, including GPS data, from a service provider or from a device, CalECPA requires a warrant.

Read More


FAN 81 (First Amendment News) Parody Prevails, Copyright Challenge Fails — the Play Goes On

David Adjmi

David Adjmi

David Adjmi is an accomplished playwright. Three years ago one of his plays, 3C, was performed at the Rattlestick Playwrights Theater. The New York Times described it as a “darkly comic deconstruction of the 1970s sitcom Three’s Company.” But DLT Entertainment Ltd., (the sitcom’s copyright owner) didn’t appreciate the humor, so its lawyers sent out a  cease-and-desist letter. The claim was that Mr. Adjmi had borrowed too much. Though the play went on, the suit did too. The question was whether there was a First Amendment parody and fair use privilege to do what Adjmi did.

That question was answered recently by United States District Court Judge Loretta A. Preska who ruled that “despite the many similarities between the [play and the sitcom], 3C is clearly a transformative use” and thus can be performed, published, and licensed.

Bruce Johnson

Bruce Johnson

At first Mr. Adjmi was tempted to give in to DLT Entertainment Ltd’s demands because he lacked the money to stay in the legal fight. The plot then thickened: Patrick Healy, then theatre reporter for the New York Times, was incensed, so he “started a petition on Adjmi’s behalf, which was signed by many in the industry, including some fancy people, too, like Stephen Sondheim and Aaron Sorkin and Tony Kushner.”

Enter Bruce Johnson, a noted First Amendment lawyer at Davis Wright Tremaine. The turning point came when Mr. Johnson and his firm took on the case, pro bono. They won it. As Mr. Johnson told American Theatre“We took this on a pro bono basis because we care deeply about the theatre,” and felt that “meritless legal claims should not be used to block free speech.” As he saw it, “DLT was hoping that its greater financial resources would overmatch whatever legal help David [Adjmi] could find, if anyone.” That disturbed Johnson “because it was clearly intended to have an effect on David and his efforts to protect his free speech rights.”

In the words of the Bard, “all’s well that ends well.” (See below)

Performance & Panel Discussion ←

The Arts Integrity Initiative at The New School College of Performing Arts, School of Drama, will present the first public reading of David Adjmi’s 3C, following the work’s landmark legal victory. Directed by Jackson Gay, this is the first public performance of 3C following the landmark legal victory.

A panel discussion hosted by playwright and New School faculty member Jon Robin Baitz will include attorney Bruce Johnson and David Adjmi, speaking publically for the first time, about 3C’s journey since its world premiere in June of 2012 at Rattlestick Playwrights Theater.


WHERE: The New School Auditorium – 66 W. 12th Street New York City, New York


Abortion Buffer Zone Ordinance Invalidated Read More


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.