Category: First Amendment

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FAN 51.5 (First Amendment News) Floyd Abrams on “the greatest threats to free speech in this country”

My First Amendment leads me to favor more speech, not less, on campus. And more speech, not less, in our elections. And more speech, not less, by corporations. And unions. And individuals. To me, then, the issue is not who benefits from reading the First Amendment broadly. It is that we all lose by reading it narrowly. Floyd Abrams, March 16, 2015

Floyd Abrams spoke at Temple University, Beasley School of Law, in Philadelphia yesterday to give the Arlin & Neysa Adams Lecture. In sometimes pointed, but always nuanced, remarks he singled out two great threats to free speech in modern America (see below).

In the course of his noontime remarks, Mr. Abrams took issue with

  • Professor Burt Neuborne (re “whether corporations are even in the First Amendment ballpark”), and with
  • Justice Stephen Breyer (re his defense of “collective speech” in his McCutcheon dissent), and with
  • Mr. Lincoln Caplan (re his belief that if corporations are protected by the First Amendment democracy will be imperiled).

Mr. Abrams’ remarks were prompted, in part, by a blog post by Professor Howard Wasserman, “Declaring Victory?PrawfsBlawg, Fe. 26, 2015 (re “There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech” — this in reference to the ACLU’s 2015 Workplan omitting any significant First Amendment agenda).

A few excerpts from the unpublished 4,300-word speech are set out below.

* * * * 

Greatest Threats to Free Speech 

Floyd Abrams speaking at Temple Law School

Floyd Abrams speaking at Temple Law School

1.  Suppression of Speech on College Campuses: Today, “pressures on freedom of expression, and all too often the actual suppression of free speech, come not from outside the academy but from within it.  And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard.”

2.  The Ideological Left’s Attacks on First Amendment Freedoms: “[I]t is the ideological Left that is increasingly less supportive of the First Amendment – or, to put it more fairly, [less supportive of] more speech or speech-like activity being protected by the First Amendment. . . .”

* * * * 

What the First Amendment is About

Protecting Democracy by Protecting Speech“Scholars, as well, who are willing to support the suppression of speech in the name of democracy are themselves missing the whole point of the First Amendment. . . . I think the First Amendment protects democracy by protecting speech and that when we suppress speech we imperil democracy. Period. So for me, when the conservative entity known as Citizens United produced and sought to put a nearly hour-long documentary-style denunciation of Hillary Clinton on pay-for-view when she was (or seemed to be) the leading Democratic candidate for President, it is obvious that it should be protected by the First Amendment. And to him and four members of the Supreme Court, because the money that was spent preparing the documentary came, in part, from corporate grants, that speech can be deemed criminal.”

The First Amendment is about Liberty: Those who suppress speech in the name of democracy conflate “what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. We might raise taxes, enact stricter antitrust laws, limit the size of corporations – choose your own. But what the First Amendment forbids the government from doing is abridging speech. The great English philosopher Isaiah Berlin put it this way:

Everything is what it is; liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.

“To which I add: the First Amendment is about liberty. We may and should take all appropriate steps to effectuate and protect other human values. But let’s not overcome or rewrite the First Amendment in doing so.”

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FAN 51.4 (First Amendment News) FCC Ruling: Broadband Internet Providers Have no First Amendment Rights re Access Services

On March 12, 2015, the Federal Communications Commission issued a 400-page ruling entitled “Report and Order on Remand, Declaratory Ruling, and Order.”

UnknownBy the Commission: Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel issuing separate statements; Commissioners Ajit Pai and Michael O’Rielly dissenting and issuing separate statements.

Here are a few First Amendment related excerpts from the FCC ruling and order:

  1. Benefit to Public: “Informed by the views of nearly 4 million commenters, our staff-led roundtables, numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.”
  2. Mere Transmission: “When engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as conduits for the speech of others. The manner in which broadband providers operate their networks does not rise to the level of speech protected by the First Amendment. As telecommunications services, broadband Internet access services, by definition, involve transmission of network users’ speech without change in form or content, so open Internet rules do not implicate providers’ free speech rights. And even if broadband providers were considered speakers with respect to these services, the rules we adopt today are tailored to an important government interest—protecting and promoting the open Internet and the virtuous cycle of broadband deployment—so as to ensure they would survive intermediate scrutiny.”
  3. No Speaker Status: “Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker—absent speech, such rights do not attach.”
  4. Limited to Access Services: “[T]he free speech interests we advance today do not inhere in broadband providers with respect to their provision of broadband Internet access services.”
  5. Cable Distinguished: “[B]broadband is not subject to the same limited carriage decisions that characterize cable systems—the Internet was designed as a decentralized ‘network of networks’ which is capable of delivering an unlimited variety of content, as chosen by the end user.”
  6. Content Neutral“Even if open Internet rules were construed to implicate broadband providers’ rights as speakers, our rules would not violate the First Amendment because they would be considered content-neutral regulations which easily satisfy intermediate scrutiny. In determining whether a regulation is content-based or content-neutral, the ‘principal inquiry . . . is whether the government adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.'”
  7. Narrowly Tailored: “[T]he rules here are sufficiently tailored to accomplish these government interests. The effect on speech imposed by these rules is minimal.
  8. Citizens United Distinguished: “Our rules governing the practices of broadband providers differ markedly from the statutory restrictions on political speech at issue in Citizens United. Our rules do not impact core political speech, where the ‘First Amendment has its fullest and most urgent application.’ By contrast, the open Internet rules apply only to the provision of broadband services in a commercial context, so reliance on the strict scrutiny standards applied in Citizens United is inapt.”
  9. Compelled Disclosure: “The disclosure requirements adopted as a part of our transparency rule also fall well within the confines of the First Amendment. . . . The Supreme Court has made plain in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio that the government has broad discretion in requiring the disclosure of information to prevent consumer deception and ensure complete information in the marketplace.”
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FAN 51.3 (First Amendment News) 8th Circuit Panel Strikes Down Missouri’s “House of Worship Protection Act”

The Case: Survivors Network of Those Abused by Priests, Inc. et al v. Joyce (8th Cir., March 9, 2015)

Judge Diana E. Murphy

Judge Diana E. Murphy

The Facts: “This action was brought by [the ACLU of Missouri on behalf of] two Missouri non profit organizations and two individuals who regularly gather outside Catholic churches to address sexual abuse by priests and other matters of public concern. Four parties, appellants here, have raised a facial First Amendment freedom of speech challenge to Missouri’s “House of Worship Protection Act.” The Act prohibits intentionally disturbing a ‘house of worship by using profane discourse, rude or indecent behavior . . . either within the house of worship or so near it as to disturb the order and solemnity of the worship services.’”

The Ruling: (Opinion per Judge Diana E. Murphy joined by Judges James B. Loken and Roger Leland Wollman)

  1. “The Act’s prohibition on profane discourse and rude or indecent behavior is content based.”
  2. “[T]he Worship Protection Act bans “profane” language and ‘rude or indecent behavior’ without defining these adjectives or what is meant by ‘unreasonably’ disrupting a house of worship.”
  3. “The Act bans the use of ‘profane discourse, rude or indecent behavior,’ meaning that a protester holding a sign considered profane or indecent outside a church is subject to penalties because of the content of her speech. Enforcement authorities must decide not only whether the speaker intentionally and unreasonably disturbs a house of worship, but also whether she uses profane or rude expression in doing so. Such distinctions based on the nature of the message conveyed make the Act content based.”
  4. “This Missouri statute cannot survive strict scrutiny since [the law] draws content based distinctions that are not necessary to achieve the state’s asserted interest in protecting the free exercise of religion.Since the Missouri House of Worship Protection Act violates the First Amendment, we reverse the judgment of the district court and remand for further proceedings . . . .”

As amici point out, critical portrayals of Muhammad outside a mosque or of the Pope outside a Catholic Church might well be considered profane or indecent by their audiences. Others may find language using the name of holy figures as swear words not only disrespectful, but profane as well. Similar expressions in the near vicinity of a house of worship have the potential to disturb or disquiet those present for worship. The meaning of “profane,” or irreverence to the sacred, is not a well defined legislative term familiar to people of different faiths. Any silent demonstration outside a house of worship would likely be able to create a disturbance only by the content of its message. Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment.

Amici for AppellantsThomas More Society and the Thomas Jefferson Center for the Protection of Free Expression

[ht: Steve Wermiel]

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FAN 51.2 (First Amendment News) Larry Tribe unto the Breach — “I believe Citizens United was rightly decided” (But hold on, there is more . . . )

[J]ust as these issues cannot be intelligently settled by slogans like “money isn’t speech” and “corporations aren’t people,” so too they cannot be satisfactorily settled by proclamations that independent expenditures don’t corrupt or by sweeping assumptions that government regulation of spending on political speech always equals censorship.” — Laurence Tribe (March 9, 2015)

Venturing into dangerous ideological minefields, Professor Larry Tribe has just posted an article on the most controversial topic in the modern free speech era. His article, posted on SSRN, is entitled “Dividing ‘Citizens United': The Case v. The Controversy.” The piece will appear in a future issue of Constitutional Commentary.

Here is how Tribe begins his article:

In the five years since Citizens United, that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told ‘no.'”

And where does the all-too-liberal professor come down on the case that so many liberals love to hate? Well, here is his short take: “As a case dealing with a particular controversy over a proposed publication, I believe Citizens United was rightly decided.” He sounds like another liberal prepared to incur the wrath of his fellow liberals — merely consider how this issue has divided the ACLU. But hold on; the good professor may yet endear his liberal friends with the next admonition:

It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Laurence Tribe

Professor Laurence Tribe

For those reasons and others, Professor Tribe believes we should rethink the First Amendment as it pertains to campaign finance law. “The First Amendment,” he adds, “requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme.” He fears that the Court has begun to privilege “an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture.” That troubles him.

And yet . . . he remains concerned about First Amendment liberty being cabined. That troubles him, too. What to do? Nuance! Balance! Moderation!

On the one hand: “The Supreme Court’s sin in Citizens United is not that it has been wrong to recognize and embrace the libertarian values that inhere in the First Amendment.” (Applause: Conservatives)

On the other hand: “But the libertarian campaign finance law the Court has developed fails in the broader project vital to First Amendment jurisprudence: the sensitive accommodation of competing constitutional values.”  (Applause: Liberals)

→ The problem is that Citizens United represents an “unrelenting skepticism of legislators’ motives, a pathologically rigid doctrinal absolutism, and a naïve, unrealistic economic libertarianism and blindness to political corruption.”

The challenge: “How to understand the First Amendment, and deciding how it should blend libertarian, egalitarian, and democratic values, is among our most difficult constitutional questions.”

The warning: “There may be satisfaction in such intellectual absolutism, in painting in bright colors and with a broad brush. But a wiser path recognizes the difficulty of the normative issues at the heart of campaign finance law and the irreconcilable values that recent cases implicate.”

→ The plea: “This is not a plea for deciding any particular case one way or another. Indeed, as I stated at the outset, I believe that the Court rendered the correct judgment in favor of the right claimed by the corporation that sought to distribute a video critical of Hillary Clinton in Citizens United. This is instead a plea for greater judicial open-mindedness, sensitivity to nuance, and a measure of old-fashioned humility.”

→ The path: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality. The form that these regulations may take is properly policed by the federal judiciary . . .”

Question: Has Professor Tribe found some important common ground? A new day perhaps? Or has he, too, abandoned the values that for so long informed liberal thought? Yesterday repackaged? However you come me down, let the dialogue begin anew.

There is, of course, more (much more), and I urge readers to give serious thought to this thoughtful contribution to our free speech literature.

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FAN 51.1 (First Amendment News) Oklahoma ACLU Issues Separate Statements on Racist Chants

March 9, 2015 (ACLU of Oklahoma Press Release)

OKLAHOMA CITY – Following this weekend’s news of members of the University of Oklahoma’s Sigma Alpha Epsilon Fraternity chanting about lynching African Americans, and the investigative and disciplinary actions in progress, the American Civil Liberties Union of Oklahoma as released the following statements:

The following is attributable to Ryan Kiesel, ACLU of Oklahoma Executive Director:

Sixty-six years ago and after two trips to the United States Supreme Court, Ada Lois Sipuel Fisher became the first African American student to be admitted to the University of Oklahoma College of Law. Even after her admission, she was still segregated from her white peers. With a legal team that included Thurgood Marshall, her case played a critical role in the end of the separate but equal doctrine. As monumental as that victory may have been, the video showing SAE fraternity members at the University of Oklahoma singing a disgraceful racist chant serves as a stark reminder that racism is very much a present reality.

We offer our sincere appreciation to the students, faculty and staff who have joined together in solidarity against hate and racism. They remind us that the spark in Ada Lois Sipuel Fisher still persists in the minds of those who benefitted from her work. Let history say the same of us. At the very least, this awful incident must prompt a robust conversation and a review of every aspect of campus life so that we can combat persistent discrimination and realize racial justice. And as the fates of the students at the center of this controversy unfold, we encourage the administration to demonstrate their commitment to due process; for it is often in protecting the rights of the very worst, we are able to demonstrate our fullest commitment to justice. (emphasis added)

The following is attributable to Brady Henderson, ACLU of Oklahoma Legal Director:

We join with OU President David Boren, as well as the majority of OU students, faculty, and alumni, and with an overwhelming number of Oklahomans in their disgust at SAE’s conduct this past Saturday night. While many Americans paused this weekend to reflect on the 50th Anniversary of Martin Luther King’s famous march in Selma, Alabama, these students marked the occasion by mocking one of the saddest chapters of American history, the mob-fueled, government-sanctioned murder of African Americans. These students remind us that despite King’s victory in Selma, and other battles won by countless citizens with the courage to face hate head-on, racism is not dead or even dormant in modern America, even on our college campuses.

We applaud President Boren’s aggressive response to the SAE’s actions, and we encourage the OU administration to be equally aggressive in ensuring that the due process rights of students remain protected throughout any disciplinary processes against Fraternity members. The deep-rooted problem of racism will not be solved by discipline alone, but by open and honest dialogue and an accounting of where we are and where we need to go not just in our universities, but in the communities university students will one day lead.(emphasis added)

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FAN 51 (First Amendment News) Journalists, Scholars & Others Pay Tribute to Anthony Lewis

Anthony Lewis . . . created a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership. David Cole (May 9, 2013)

Tony Lewis (credit: NYT)

Tony Lewis (credit: NYT)

Anthony Lewis (1927-2013) — reporter, columnist, educator, Pulitzer Prize-winning author, and scholar. He was all of those things and more. I grew up on Tony Lewis (he was born Joseph Anthony Lewis). He was right there, in the New York Times, which in those days you couldn’t get on the Internet – there was none. If you were outside New York you were lucky to find a hard copy at a good hotel or news- stand.  A Lewis column was a staple of one’s diet for those who followed the Court and related matters. And what a corpus of work he set his name to — some 5,600 some articles and columns and five books. That is reason enough to single out the Lewis byline.

→ See Adam Liptak, “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” NYT, March 25, 2013

Happily, the Missouri Law Review recently paid tribute to Tony Lewis in a symposium issue with 13 contributors, several of whom once worked with him and were also close friends of his. (Note: The links below may not open in Safari but should open in Firefox and Chrome.)

  1. Foreword: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis, by Richard Ruben
  2. Keynote: Anthony Lewis and the First Amendment, by Adam Liptak

Articles

  1. Anthony Lewis: What He Learned at Harvard Law School, by Lincoln Caplan
  2. Anthony Lewis: Pioneer in the Court’s Pressroom, by Lyle Denniston
  3. The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat, by Linda Greenhouse
  4. Press Freedom and Coverage in the U.S. and Kosovo: A Series of Comparisons and Recommendations, by Ben Holden
  5. A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law, by Heath Hooper & Charles N. Davis
  6. Anthony Lewis, by Dahlia Lithwick
  7. Legal Journalism Today: Change or Die, by Howard Mintz
  8. Institutionalizing Press Relations at the Supreme Court: The Origins of the Public Information Office, by Jonathan Peters
  9. Setting the Docket: News Media Coverage of Our Courts – Past, Present and an Uncertain Future, by Gene Policinski
  10. As Today’s Tony Lewises Disappear, Courts Fill Void, by David A. Sellers
  11. Making Judge-Speak Clear Amidst the Babel of Lawspeakers, by Michael A. Wolff

Tony Lewis’ Fantasy

You lead me to tell you my fantasy. A happy fantasy. [It is this:] our next President does the equivalent of what Jefferson did in his first inaugural when he was so hated by the Federalists and began his inaugural speech by saying, “We are all Republicans – we are all Federalists.” The next president sets out to say two things. One, there’s nobody unpatriotic here. We’re all Americans together. And two, this administration is going to be an administration of law; where law has been rolled back, we’re going to bring it to the fore again. This country is a government of laws, not men. That’s my fantasy. Will it happen? I doubt it. But I sure think it ought to. (Sept. 12, 2006 Interview, Walter Lippmann House, Cambridge, Mass.)

Go here for a C-SPAN interview I did with Tony in connection with his book Freedom for the Thought That We Hate: A Biography of the First Amendment (2001).

Media Groups Challenge Claim for Profits in the Defamation Case

Jesse Ventura

Jesse Ventura

The case is Ventura v. Kyle, which is presently before the United States Court of Appeals for the Eighth Circuit. The matter involves a defamation lawsuit brought in federal court by Jesse Ventura (former governor of Minnesota and Navy veteran) against HarperCollins concerning its publication of the book American Sniper by Chris Kyle. Last summer, a jury awarded Ventura $1.8 million from the Kyle estate. The case is now on appeal.

Yesterday Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:

  1. The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
  2. The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate

“[T]he law of libel,” they maintain, has “been clear that while damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants. That proposition has rarely been questioned until this case. Indeed, we know of only one case, decided more than 65 years ago, that is directly on point: Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted in constitutional concerns and the common law relating to libel, the Hart decision holds that a claim for profits may not be asserted in the defamation context. We are aware of no case before or after Hart to the contrary.”

The briefs concludes: “Where, as here, there was no showing of evil intent sufficient to satisfy [Minnesota’s punitive damages law], where, as here, an award of profits can serve no deterrent or punitive purpose, and where, as here, the First Amendment’s abhorrence of exorbitant damage awards untethered to a plaintiff’s true injury is clearly in play, this Court should not be the first to sanction an unprecedented award of a book’s profits.”

 As noted in their amicus brief, the issue of an award of profits in defamation cases is addressed in Dan Dobbs, Law of Remedies: Damages – Equity – Restitution (2d ed.) (“One reason to deny the restitution claim is the threat it presents to free speech. Another is the difficulty of apportioning the publisher’s profit between his own effort and investment and the defamatory material.”)

Geoffrey Stone Weighs in on Oklahoma Expulsion Controversy  Read More

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FAN 50.1 (First Amendment News) Lanham Act Violates the First Amendment Says ACLU

On March 5, 2015,  the national ACLU and its Virginia Chapter filed an amicus brief in the federal district court for the Eastern District of Virginia challenging the constitutionality of Section 2(a) of the Lanham Act (15 U.S.C. § 1052(a)) as violative of the First Amendment. The case is Pro-Football, Inc. v. Blackhorse, et al (# 1:14-cv-01043-GBL-IDD).

aclu_logoHere is a description of the case: “In the wake of the [Trademark Trial and Appeal Board’s] decision last year to cancel a number of federal trademark registrations for the Washington Redskins team name, on the grounds that the marks were disparaging to Native Americans at the time they were issued in violation of section 2(a) of the Lanham Act, Pro-Football, Inc. (“PFI”)—the corporation that owns the Redskins franchise—sought de novo review of that decision in the United States District Court. Filing a district court action rather than appealing allowed PFI to raise claims that were beyond the powers of the TTAB to address—chiefly that section 2(a) is unconstitutional.” Craig C. Reilly is the lead counsel for the Petitioners.

Rebecca K. Glenberg filed the ACLU’s amicus brief. In that brief, the ACLU advanced four arguments:

  1. The Lanham Act regulates private expression protected by the First Amendment
  2. Section 2(a) of the Lanham Act impermissibly mandates viewpoint discrimination
  3. Section 2(a) burdens private speech by placing an unconstitutional condition on the receipt of valuable government benefits, and
  4. Section 2(a) is unconstitutionally vague and over broad.

Here is an excerpt from the ACLU brief:

Few principles in constitutional law are as settled as the First Amendment’s prohibition on government regulation of private speech based on viewpoint. The courts have never blessed a government program that permits government actors to determine the acceptability of a speaker’s viewpoint and then condition benefits based on that determination. The First Amendment harms are magnified when such regulation of speech rests on vague and subjective terms that provide no meaningful notice to speakers as to which speech the government will find acceptable, and thereby risk—and in this case, ensure—inconsistent and discriminatory application.These evergreen principles hold no less true simply because they arise in the context of trademark law. Yet Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), not only condones but mandates viewpoint-based discrimination in the provision of trademark registration. Section 2(a) prohibits the registration of any trademark interpreted by the U.S. Patent and Trademark Office (“PTO”) to be immoral, scandalous, or disparaging to any persons, institutions, beliefs, or national symbols. It is indisputable that registration of a mark provides substantial benefits to a trademark holder; it is also true that many trademarks involve expressive speech and association. Therefore, by authorizing the government to deny registration of certain marks because of a viewpoint-based determination about the character of expressive speech, Section 2(a) violates the First Amendment.

Lee Rowland, Esha Bhandari (both of the national ACLU) and Brett Max Kaufman (Technology Law & Policy Clinic, New York University School of Law) were also on the ACLU amicus brief.

[HT: Anthony Romero]

UPDATE: See commentary here  by Professor Eugene Volokh.

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Is the Logan Act Constitutional?

Now that the argument in King v. Burwell is over (looks like the Government will win, though three years ago it looked like the government would lose and then . . .), let us return to other subjects.

In 1799, Congress passed the Logan Act, which states, in part:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Nobody has ever been convicted under this statute, and I have to wonder whether it is constitutional.  Why don’t I have a First Amendment right to carry on correspondence with a foreign government or official to influence their policies in connection with ours?  If you construed this statute narrowly (say, to apply to giving the enemy information in wartime), that’s one thing, but the Logan Act covers much more.  The fact that this was passed by the same Congress that gave us the Alien and Sedition Acts (and was meant to bar Jeffersonians from talking to France), combined with the total lack of convictions over more than 200 years,  makes the case for constitutionality look even weaker.

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FAN 50 (First Amendment News) ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds

In my last FAN post I noted that the ACLU’s 2015 Workplan (an eight-page informational and fundraising document) had only a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. Furthermore, a February 24, 2015 two-page ACLU fundraising letter concerning the 2015 Workplan contained no reference whatsoever re protecting free speech rights. In light of this, I invited the ACLU’s Executive Director Anthony Romero “to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan.”

Mr. Romero kindly accepted my invitation and his response of February 27th is set out below. As you can see, protecting free speech freedoms continues to be an important part of the ACLU’s mission even if its fundraising letters sometimes downplay or overlook all the fine First Amendment work the group does.

Burt Neuborne

Burt Neuborne

Unfortunately, Mr. Romero declined to do a Q&A with me, for now at least — but my invitation remains open.

Meanwhile, I am pleased to say that I am scheduled to do a Q&A with Professor Burt Neuborne, who served as the National Legal Director of the ACLU from 1981-86 and who has just published a book entitled Madison’s Music: On Reading the First Amendment.

Stay tuned.  

______________________________________________________________________________

Dear Mr. Collins:

Anthony Romero

Anthony Romero

I appreciate your concern that the 2015 Workplan did not contain a section devoted to the ACLU’s efforts defending First Amendment freedom of expression, but I want to assure you that this remains a robust, bedrock area of our work to which we remain fully committed. As we note in the Workplan, the issues we chose to focus on in that document are just the tip of the iceberg in terms of the ACLU’s work. The Workplan is our annual opportunity to highlight certain broad issue areas and our funding goals to continue to move forward in those particular areas of our work.

Moreover, the issue areas outlined in our Workplan tend to be those where there exists a national trend – such as a coordinated effort to erode rights (e.g., reproductive rights, voter ID laws) or an opportunity for new gains (e.g., freedom to marry, mass incarceration) – or those where recent events warrant a highly coordinated, national effort on the part of the ACLU (e.g., government surveillance, privacy & technology, police misconduct).

First Amendment issues come up throughout our work and play an important role in many of our cases. At the national office, this work comes under the umbrella of our Speech, Privacy, and Technology Project which is dedicated to protecting and expanding the First Amendment freedoms of expression, association, and inquiry; expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology. The project is currently working on a variety of issues, including political protest, freedom of expression online, privacy of electronic information, journalists’ rights, scientific freedom, and openness in the courts.

The project routinely briefs critical First Amendment issues in the Supreme Court and the federal Courts of Appeal. In this past year, we have authored and submitted three friend-of-the-court briefs to the Supreme Court arguing for maximal free speech protections, including: a brief arguing that a political candidate had the right to challenge a law criminalizing “political lies,” (brief available here); a brief arguing that the government must meet a high bar in order for a jury to convict an individual for a “true threat,” whether online or off (brief available here); and, just last week, a brief supporting the Sons of Confederate Veterans’ challenge to Texas’ censorship of “offensive” messages on specialty license plates (brief available here). The ACLU is and has always been fully committed to protecting free speech, even when that speech may be offensive or controversial to many.

[RC: The ACLU also recently filed an amicus brief in the Supreme Court in Williams-Yulee v. The Florida Bar, the judicial election campaign solicitation case.]

The project also maintains a strategic litigation docket focused on new First Amendment issues of national concern. For example, in the last few months we filed a First Amendment claim on behalf of media clients challenging Ohio’s censorship of execution access (case page here), as well as a groundbreaking challenge to Arizona’s recent anti-nudity law – one of numerous such state bills passed in the name of prohibiting “revenge porn,” but drafted so broadly as to function as a broad ban on sharing lawful nudity; that case page is available here. Of course, we also engage in diverse non-litigation advocacy and public education on free expression issues; you can read about our recent First Amendment-related issue advocacy at this link.

aclu_logoFurthermore, our First Amendment freedom of expression work is somewhat unique in that a large share of it involves responding to threats or incidents that occur on the local level and not generally as part of a broader, coordinated threat to freedom of expression. For as long as the ACLU has existed, the vast majority of First Amendment cases have been litigated by our affiliates. At the state level, First Amendment litigation tends to comprise a large portion – in many states perhaps even a majority – of ACLU affiliates’ litigation dockets.

So while free speech work remains a core, priority area of focus for the ACLU, much of the on-the-ground work of preventing or challenging restrictions of freedom of expression is carried out by ACLU attorneys and lobbyists in our local affiliate offices—often, with assistance and resources from the national office. A salient example of this is the ACLU of Missouri’s recent work to protect the rights of protesters in Ferguson; the national office assisted when a federal agency (the FAA) entered a no-fly zone which we believed to improperly limit media access. I’ve also included (at the bottom of this email) some links to our news releases on a selection of recent, ACLU First Amendment cases brought by both the national office and state affiliates, for your reference.

Mr. Collins, I hope this reply provides some clarity with respect to your concerns. Please rest assured that the ACLU remains committed to staunchly defending freedom of speech and expression.

All my best,

Anthony Romero

ACLU work on freedom of protest in Ferguson (highlights) Read More

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FAN 49.2 (First Amendment News) Court denies cert in ballot initiative disclosure case

Earlier today the Court  released its orders from the February 27th Conference. There were no cert. grants, but the Justices did deny cert. in one case — ProtectMarriage.com-Yes on 8 v. Bowen. [HT: Rick Hasen]

Some opinions may be released next week.  

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

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) (to be 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. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. ProtectMarriage.com-Yes on 8 v. Bowen
  2. Kagan v. City of New Orleans
  3. Clayton v. Niska
  4. Pregnancy Care Center of New York v. City of New York 
  5. City of Indianapolis, Indiana v. Annex Books, Inc.
  6. Ashley Furniture Industries, Inc. v. United States 
  7. Mehanna v. United States
  8. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  9. Vermont Right to Life Committee, et al v. Sorrell