Category: General Law

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FAN 64 (First Amendment News) More on the Roberts Court & the First Amendment — the Women Justices

How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.

In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:

  • Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
  • Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
  • Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).

Now onto the tallies in First Amendment free expression cases:

Number of Majority/Plurality Opinions

  • Justice Ginsburg: 3 out of 39 [Roberts = 13 & Kennedy & Scalia 5 each during same period]
  • Justice Sotomayor: 2 out of 23 [Roberts = 9 & Kennedy = 4 during same period]
  • Justice Kagan: 0 out of 15* [Roberts = 6 & Kennedy = 3 during same period] [*EK did not participate in 2 of the 17 cases decided during her tenure]

Number of Separate Opinions

  • Justice Ginsburg: 5 out of 39 (2 dissenting opinions, 1 dissenting & concurring in part & 2 concurring opinions)
  • Justice Sotomayor: 2 out of 23 (2 concurring opinions)
  • Justice Kagan: 2 out of 15 (2 dissenting opinions) [*EK did not participate in 2 of the 17 cases decided during her tenure]

Total Number of Opinions by RBG, SS & EK

  • 14 (includes total majority & separate opinions) [By contrast: CJ Roberts alone has authored 13 majority/plurality opinions]

Justice Ginsburg’s majority opinions

  1. Christian Legal Society v. Martinez (5-4, 2010) (1-A claim denied)
  2. Golan v. Holder (6-2, 2012) (1-A claim denied)
  3. Wood v Moss (9-0, 2014) (1-A claim denied)

Justice Sotomayor’s majority opinions

  1. Milavetz, Gallop, & Milavetz v. United States (9-0, 2010) (1-A claim denied)
  2. Lane v. Franks (9-0, 2014) (1-A claim sustained)

Thus, in the 15 such cases in which all the women Justices participated, they authored only one majority opinion (Lane v. Franks). (Justices Ginsburg and Sotomayor participated in 17 such cases during the same period and the number of majority remained the same.)

Record re 5-4 Majority/Plurality Opinions: Of the eleven 5-4 Roberts Court majority or plurality opinions in First Amendment free expression cases, only one was authored by any of the Court’s female members (Justice Ginsburg). There were six 5-4 judgments during Justice Sotomayor’s tenure, and four such judgments during Justice Kagan’s tenure.

(CJ Roberts leads in this area with 5 such opinions followed by Justices Kennedy and Alito with two apiece.)

Justice Ginsburg’s separate opinions Read More

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More on Signed Appellate Opinions

Paul Horwitz has written a characteristically thoughtful post over at PrawfsBlawg on the issue that I raised the other day about whether we should still permit per curiam opinions.  I have a couple of additional observations on my end:

1.  Without signed opinions, outsiders would find it hard to assess the quality of individual appellate judges.  This matters when you want to think about possible candidates for promotion.  Instead, you’d have to rely on insider information that would be less reliable (“I heard from so-and-so’s law clerk that Judge X wrote that opinion.”).

2.  There is an exception to Point #1.  When judges sit on panels of three, the dissenter would always be named.  Thus, what we’d know about appellate judges would come largely from their dissents.  Or one could imagine more separate concurring opinions if that was the only way to get one’s name out for public consumption.  I’m not sure that this be a great system for assessing judges.

3.  Why do people care that a given opinion was written by Henry J. Friendly?  I think the answer is that they think that opinion will just be better.  While all panel opinions are formally equal, that does not mean that they are equally useful.  Knowing the judge’s reputation (good or bad) reduces search costs for attorneys and scholars, and that matters in the real world.

One last thought–there is a strong argument in favor of anonymous publication as a way of forcing people to focus on the arguments and not on the personalities.  (Hello, Publius.)  Of course, that argument could apply just as well to law review articles as it does to opinions.

 

 

 

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FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015

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Conspiracy in the Lincoln Assassination Trial

On Friday, the DC Circuit issued its decision in Al Bahlul v. United States.  The opinion held that Congress exceeded its Article I powers by authorizing a military commission to try a Guantanamo detainee for the crime on conspiracy.  I cannot claim any special expertise on this question, but the dueling opinions (Judge Rogers for the Court and Judge Henderson in dissent) do address one point that I know something about–the trial of John Wilkes’s Booth’s accomplices.  We are in the midst of the 150th anniversary of that military trial, which I spent a chapter discussing in my biography of Bingham.

The Court declined to rely on the Lincoln assassination military trial as authority for Al Bahlul’s conspiracy conviction, and I think that this was correct.  First, the assassins were not charged with conspiracy.  The actual charge was “traitorous conspiracy,” not conspiring to commit treason.  What is that?  Basically, it was a charge invented just for them to avoid Article III’s requirements for proving treason while still conveying the idea that they had done something treasonable.  The dissent (which oddly spends a lot of time citing Chief Justice Rehnquist’s book that discusses the Lincoln trial, rather than the primary sources), errs in reaching the opposite conclusion.

Moreover, the Lincoln assassination commission was filled with irregularities and thus is not a precedent people ought to read broadly.    The District Court opinion that rejected the habeas corpus petition of some of the convicted men was not convincing, and even if it was right the special circumstances presented by the murder of the President in wartime are far removed from the cases of the Guantanamo detainees.

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FAN 63.2 (First Amendment News) — Court denies review in compelled ultrasound image abortion case — First Amendment claim stands

Today the Court released its orders list. The Justices denied review in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial.

The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.

The Fourth Circuit stuck down the law (see here) on First Amendment grounds. The lower court opinion was authored by Circuit Judge J. Harvey Wilkinson.

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Why privacy matters even if you don’t care about it (or, privacy as a collective good)

privacy is...

“How much do people care about privacy?” This is a key, enduring, question in ongoing debates about technological surveillance. As survey after survey regarding changing privacy attitudes is presented as proof that privacy is dead, one might wonder why we should bother protecting privacy at all.

One common answer is that the privacy surveys are wrong. If survey-makers only asked the right questions, they would see that people do actually care about their privacy. Just look at the most recent Pew Research Survey on privacy and surveillance. We should protect privacy rights because people care about it.

While this answer is fine, I find it unsatisfying. For one, it’s hard to draw firm conclusions about privacy attitudes from the surveys I’ve seen (compare the Pew survey linked above to this Pew survey from the year before). Those attitudes might ebb and flow depending on the context and tools being used, and social facts about the people using them. More importantly, though, while privacy surveys can be very valuable, it’s not clear that they are relevant to key policy questions about whether and how we should protect privacy.

This leads to what I think is the better (but perhaps more controversial) answer to the puzzle: privacy is worth protecting even if turns out most people don’t care about their own privacy. As counterintuitive as it seems, questions about privacy and surveillance don’t–and shouldn’t–hinge on individual privacy preferences.

That’s because questions about privacy rights, like questions about speech or voting or associative rights, are bigger than any individual or group. They are, instead, about the type of society we (including all those survey-takers) want to live in. Or as scholars have suggested, privacy is best thought of as a collective rather than merely an individual good.

Privacy is like voting

Many of our most cherished rights, such as expressive, associational, and voting rights, are understood to protect both individual and collective interests. The right to vote, for example, empowers individuals to cast ballots in presidential elections. But the broader purpose of voting rights–their raison d’être–is to reach collective or systemic goods such as democratic accountability.

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What the Debate about Red v. Blue Families is Really About

David Leonhardt strikes again.  He links two parent families to upward mobility, and notes that two different dynamics produce two parent families: high income and religion.  He then replicates maps that purport to show these linkages.

There are two problems with these single minded linkages.  First, the geographic analysis of two parent families and the connection to social mobility is meaningless without taking race into account.  The striking thing about Utah, Idaho, the upper Midwest and New England – all areas with relatively low rates of single parent families – is that they have much smaller African-American and Latino populations, and white families tend to have strikingly different demographic patterns than non-white families, in part because of differences in socio-economic status.   The second chart Mr. Leonhardt’s column includes captures this point even more effectively.  It shows the least social mobility – and some of the highest rates of single parenthood – in a belt that runs through heavily African-American communities, primarily in the South.  These communities are as notable for their high rates of poverty, segregation, and isolation.  There is sophisticated demographic analysis underlying these figures, but Mr. Leonhardt’s column doesn’t capture it.   Instead, he largely dismisses the influence of racial factors, particularly their role in compounding the effects of poverty and isolation, as “hardly the only explanation,” while most observers would make it a critical part of the explanation.

Second, the link between single parent families and social mobility raises the question of which comes first – whether the link is a unidimensional one of single parent families causing low social mobility or poor, isolated communities causing low high rates of single parent families.  The research on this is somewhat complex.  Virtually all studies show that, all other things being equal, two parents are better than one.  Yet, the modern examination of upward mobility also indicates that children in single parent families do better in wealthier communities, eliminating some of the disadvantage that comes from single parenthood itself.  In a similar fashion, African-Americans, irrespective of family form, do better in integrated, middle-class communities.  Poor, isolated, and segregated communities on the other hand tend to suffer disproportionately from factors that increase rates of single parenthood, including high rates of unemployment, underemployment, and employment instability, racially targeted police practices that increase the portion of the male population in prison or on probation or parole, and higher rates of domestic violence and substance abuse.

In our work on ideological division (Red Families v. Blue Families) and class influences on family formation (Marriage Markets), we tried to capture the dynamic forces underlying these trends.  We argued that what “blue” family patterns reflect is an adaptation to the economic forces that reward investment in women.  In this system, couples defer childbearing until their educations are complete and they establish sufficient employment and financial stability to manage children.  This system, as the Leonhardt column indicates, works and has taken hold in the wealthier parts of the country.  What we described as “red” is a religiously based system that still celebrates marriage at younger ages.  It, too, “works” for couples embedded in religious communities and for men who still have stable employment.

The problem with both systems is what they offer for communities where good jobs have largely disappeared.  In these communities, church attendance has declined with the loss of employment, and both divorce and non-marital births have risen.  Some research indicates that the persistence of young average ages of marriage increases the divorce rates of the people in the same communities who also marry young but are less likely to attend church.  And the major factor affecting a recent decline in non-marital birth rates nationally is a decline in fertility – i.e., a blue strategy that involves greater use of contraception and more delay in childbearing – rather than more marriage, though the married couples who deferred childbearing during the Great Recession are now having children at later ages increasing the overall percentage born within marriage.

Leonhardt’s column, however, misses these demographic subtleties along with the issue of what the red/blue divide is really about.  We argued that what underlies “blue” is a modernist effort to adjust to changing economic realities.  Elites, whether in red or blue states, have done so effectively; the battle is over how to translate their systems into something that works for those at the losing end of economic changes.  “Blue” prescriptions emphasize giving women more autonomy; that is, more control of their sexuality and greater ability to avoid unplanned pregnancies and unwanted births.  For those who want to have children, however, blue policies would also provide greater support for the children who result, producing overall a smaller, better educated population.  “Red” prescriptions, which celebrate religion and marriage, also tend to work by limiting women’s autonomy.  They make it harder to access contraception, much less abortion, and favor limiting women’s ability to go it alone with respect to childrearing.  What no emphasis on the family alone can do, however, is bring back the jobs that once supported two parent, working class families.  Leonhardt’s column, by reinforcing the myth that family form somehow causes low social mobility, is a disservice to the real debate about what underlies family change.

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FAN 63.1 (First Amendment News) — Judge grants petition to unseal grand jury transcripts from 1942 Espionage Act investigation of Chicago Tribune

Chief Judge Ruben Castillo

Chief Judge Ruben Castillo

Yesterday Chief Judge Ruben Castillo granted a petition to unseal the grand jury transcripts from the 1942 Espionage Act investigation of the Chicago Tribune. The petition titled In re Petition of Elliot Carlson, et al was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. In addition to the lead petitioner, the other parties in the case were: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

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

Screen Shot 2015-06-11 at 10.54.59 AMThe government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

Despite the long-standing tradition that grand jury proceedings are to be kept secret, Judge Castillo ruled that “the rule of grand jury secrecy is not absolute.” Thus, Federal Rule of Criminal Procedure 6(e) addresses several situations in which the Court can order the release of grand jury transcripts. The controversy in the case arose over the question of whether the Court had authority to order release of grand jury materials for reasons other than those enumerated in Rule 6(e).

Against that backdrop Judge Castillo declared:

nothing in the Federal Rules expressly forbids a district court from releasing grand jury materials based on their historical significance; the Rules simply do not expressly authorize it. This distinction is critical. As the Seventh Circuit has recognized, the “mere absence of language in the federal rules specifically authorizing or describing a particularjudicial procedure should not, and does not, give rise to a negative implication of prohibition.” See G Heilman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989) (citing Link v. Wabash R.R.,370 U.S. 626, 629-30 (1989).) The Federal Rules specifically provide that, in the absence of express authority to the contrary, the Court can proceed “in any manner consistent with federal law, these Rules, and the local rules of the district.” Fed. R. Crim. P. 57(b).

 To buttress that argument, he added:

As drafted, Rule 6(e) does not contain the type of negative language — such as “only” or “limited to” — that one would expect to find if the list were intended to be exclusive.  See Fed R. Crim. P. 6 (eX3XE). Nor are the exceptions listed in Rule 6(e) part of an “associated group or series.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Rather, they describe distinct scenarios in which different individuals can seek disclosure of grand jury materials. See Fed. R. Crim. P. 6(eX3XEXi)-(v). Under these circumstances, there is little basis to conclude that Congress intended Rule 6(e)(3) to preclude disclosure of grand jury materials in all situations other than those listed. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73,81 (2002) (“Just as statutory language suggesting exclusiveness is missing, so is that essential extra-statutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication.”).

. . . The Court also considers that the Federal Advisory Committee on the Criminal Rules, a rulemaking body under the jurisdiction of the Judicial Conference Committee on Rules of Practice and Procedure, has interpreted Rule 6(e) in a manner supporting the view that courts have inherent authority to release grand jury materials for reasons outside of those enumerated.

Judge Castillo then considered the nine factors set out in In re Craig, 131 F.3d 99  (2d Cir.1997), and concluded that release of the grand jury transcripts was warranted.  Thus, he granted the petition to “release . . . the grand jury transcripts from the 1942 investigation of the Chicago Tribune.”

Reporters Committee press June 11, 2015 release here

ht: Katie Townsend

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FAN 63 (First Amendment News) CJ Roberts: Mr. First Amendment — The Trend Continues

He has the potential, almost from a running start, to bring a new day and a new era to the Supreme Court.Senator Arlen Specter (Sept. 26, 2005)
Chief Justice John Roberts (photo: Getty Images)

Chief Justice John Roberts (photo: Getty Images)

He is, by all measures, Mr. First Amendment. When it comes to free expression cases, Chief Justice John Roberts is the point man. Moreover, he solidifies that jurisprudential status with each passing year. In the process, we may well be witnessing the evolution of what could turn out to be an unprecedented chapter in the history of free-speech law in America — a welcome chapter to some and an unwelcome one to others. However that might be, one fact is undeniable: John Roberts is busy constructing a First Amendment edifice. Though it is a work still in progress, it is already towering over that of others on the Court.

This Term he has authored all of the free speech cases decided thus far by the Court — Elonis v. United States  (8-1, statutory grounds) and Williams-Yulee v. The Florida Bar (5-4). And then there is truth of the tallies:

Of course, the Chief Justice’s overall record has a few glitches, or what some might deem breaches of faith. For example, strong as his First Amendment credentials are when it comes to sustaining rights, he failed on that score in two important cases: Holder v. Humanitarian Law Project (per JR, 5-4, 2010) and Garcetti v. Ceballos (per AK, 5-4, 2006, JR joining majority). And then there was his opinion for the Court in Morse et al. v. Frederick (5-4, 2007). Finally, there was his vote Brown v. Entertainment Merchants Association (7-2, 2011) wherein he joined Justice Alito’s concurrence and thereby declined to join the First Amendment majority opinion by Justice Scalia. And while cases such as Elonis v. United States (8-1) reveal his tendency to dispose of free speech cases on statutory grounds when possible and in ways consistent with the doctrine of constitutional avoidance, others cases such as  Citizens United v. Federal Election Commission (AK, 5-4, 2010) run contrary to that position. (More could be said about all of these cases and yet other others, but I will reserve further commentary for another time.)

Roberts & Rehnquist: Stark Contrast 

Chief Justice William Rehnquist

Chief Justice William Rehnquist

What to make of it all? Here is how Paul M. Smith (a noted appellate advocate who successfully argued the Brown case) answers that question: “While it is clear that Chief Justice Roberts has become the most important Justice in First Amendment cases, surpassing even Justice Anthony Kennedy, he has shown a willingness to deny protection to speech he disapproves of. Examples include Holder v. Humanitarian Project, Brown v. Entertainment Merchants Ass’n, and Morse v. Frederick. But, that said, Chief Justice Roberts has certainly come a long way from the viewpoint of his mentor Justice (and later Chief Justice) William Rehnquist, who was far less likely than more recent conservatives to vote to invalidate laws under the First Amendment.”

Paul M. Smith

Paul M. Smith

To illustrate Mr. Smith’s comparative point, consider the fact that during his 33 years on the Court, first as an Associate Justice and then as the Chief Justice, Rehnquist authored 71 freedom-of-expression opinions, 29 of which were majority opinions. The vast majority of those opinions were hostile to the free-speech claims raised. And as Professor Geoffrey Stone has observed: “In his more than 30 years on the Supreme Court, Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the 1st Amendment claim only 20 percent of the time.”

“Strong free expression principles”

While some maintain that John Roberts’s opinions primarily serve corporate deregulatory interests (see below), the fact is that there is a bounty of doctrinal law and powerful language in many of those opinions that lawyers have tapped into in any variety of free speech cases.

Robert Corn-Revere

Robert Corn-Revere

According to Robert Corn-Revere, an experienced First Amendment lawyer: “The Chief Justice has espoused strong free expression principles that have had the effect of protecting even speech some consider to be at the fringe of the First Amendment concern – including  fetish videos and speech by hateful religious zealots. And in McCutcheon he observed that ‘[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.’  Those who criticize the application of these principles to campaign laws because they are ‘deregulatory’ simply are engaging in a different sort of result-oriented reasoning. They don’t want the First Amendment to limit those speech regulations they favor.  Chief Justice Roberts’ record may not be perfect (given decisions like MorseGarcetti, and Holder), but it certainly is strong.”

Selected Commentaries:

  1. Sam Baker, “John Roberts: First Amendment Champion*,” National Journal (June 3, 2015)
  2. David H. Gans, “Roberts at 10:The Strongest Free Speech Court in History?”, Constitutional Accountability Center (May, 2015)
  3. Lincoln Caplan, “The Embattled First Amendment,” The American Scholar (Spring 2015)
  4. David H. Gans, “The Roberts Court Thinks Corporations Have More Rights Than You Do,” The New Republic (June 30, 2014)
  5. Ronald Collins, “The Roberts Court and the First Amendment,” SCOTUSblog (July 9, 2013)
  6. Ronald Collins, “Exceptional Freedom-The Roberts Court, First Amendment, and the New Absolutism,” Albany Law Review (2013)
  7. Adam Liptak, “Study Challenges Supreme Court’s Image as Defender of Free Speech,” New York Times (January 7, 2012)
  8. Erwin Chemerisnky, “Not a Free Speech Court,Arizona Law Review (2011)
  9. David L. Hudson, Jr., “Chief Justice Roberts and the First Amendment,” First Amendment Center (April 22, 2011)

New Hampshire High Court: Parking Meter “Robin Hoods” Protected under FA

Don’t follow leaders, watch the parking metersBob Dylan

The case is City of Keene v. Cleaveland, et al (N.H., June 9, 2015). The opinion for the Court was authored by Associate Justice James P. Bassett.

Justice James Bassett

Justice James Bassett

Facts: “The City employs [parking enforcement officers (PEOs] to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a “save.” When the respondents “save” a vehicle, they leave a card on the vehicle’s windshield that reads: ‘Your meter expired! However, we saved you from the king’s tariff!’ The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as ‘f*****g thief,’ ‘coward,’ ‘racist,’ and ‘b***h'; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a ‘threat against [the] people.'”

Held: “[W]e note that we share the trial court’s skepticism as to whether a tortious interference claim can exist when private citizens engage in protest of the government. However, we need not decide whether a viable tortious interference claim can exist under the circumstances present in this case because we agree with the trial court that holding the respondents liable for tortious interference based upon their alleged activities would infringe upon the respondents’ right to free speech under the First Amendment. . . .”

7256167_G“Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort. . . .”

“In light of the City’s allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City. . . . Accordingly, we vacate the trial court’s denial of the City’s request for injunctive relief, and remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.”

Counsel for Respondents: Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally).

Amici: Nixon Peabody LLP of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

California Lawmakers: Reproductive Fact Act

This from a WND report by Bob Unruh: “California’s Democrat-controlled legislature previously became the first state to bar counselors from helping minors be healed of unwanted same-sex attractions. Counselors are allowed only to promote homosexuality to minors. Now, California Democrats, with AB 775, want to require crisis pregnancy centers, including those that are run by faith-based organizations, to actively promote abortion. New York already tried it and was slapped down by the courts.” See Evergreen Association v. City of New York (2nd Cir., 2014)

See also Samantha Lachman, “California Assembly Passes Bill Banning Crisis Pregnancy Centers From Misleading Patients,” Huffington Post, May 26, 2015: “The California Assembly passed legislation Tuesday that would require faith-motivated crisis pregnancy centers to provide comprehensive information about reproductive health care options, including abortion.”

“The bill, known as the Reproductive Fact Act, would require pregnancy centers to post notices saying that reproductive health services, including abortion, are available to pregnant women in the state. Pregnancy centers also would have to disclose whether they lack a medical license. The bill passed on a party-line vote, with Republicans objecting on the grounds that it would unconstitutionally compel government speech for the state’s 167 centers.”

Unprotected: Cellphone video of U.S. senator’s bedridden wife in a nursing home

This news report from the Associated Press: “A Mississippi judge on Monday rejected an argument that a blogger had a First Amendment right to shoot a cellphone video of a U.S. senator’s wife while she was bedridden with dementia in a nursing home. The defense attorney for blogger Clayton Kelly made the free-speech argument during pre-trial motions Monday. Clayton Kelly of Pearl is charged with conspiracy, attempted burglary and burglary”.

“‘I think a lot of this is political. I think my constitutional rights should be respected,’ Kelly, whose blog was called Constitutional Clayton, told reporters outside the Madison County Courthouse.. . .”

“Images of Rose Cochran appeared online briefly during the 2014 election, during a tough Republican primary. Investigators say Kelly was one of several people who conspired to produce the video suggesting U.S. Sen. Thad Cochran was having an affair. . . “

See also Kelly pleads guilty to conspiracy in Cochran photo case,” Jackson Clarion Ledger‎, June 8, 2015

Mobile Monument Project 

This from the Thomas Jefferson Center for the Protection of Free Expression:

The Mobile Monument Project involves transforming a standard issue 20-foot ISO shipping container into an elegant and engaging representation of our precious First Amendment values.

UnknownThe exterior features more than 400 sq ft of “chalkboard” space where visitors can express themselves however they wish. On the inside, a beautiful open gallery space provides a backdrop for rotating exhibits, performances, installations—the sky’s the limit!
In short, the Mobile Monument is an interactive exploration of what it means to enjoy and exercise our right of free expression. And because it’s so portable, the Mobile Monument takes this important message straight to the people. Once completed, the Monument can go almost anywhere:
  • College Campuses
  • State Capitols
  • Public Parks
  • Festivals
  • Community Events
  • Concerts

See video here

DONATIONS NEEDED TO FUND PROJECT: $15,000 goal (go here to contribute)

RelatedEugene Volokh Joins TJC Board of Trustees

David Strauss: “Toil and Trouble in Media-Land”

Professor David Strauss

Professor David Strauss

Over at The New Rambler Professor David Straussreviews Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (2015). Here are a few excerpts:

“The Obama Administration is said to have prosecuted more people for leaking classified information than all previous administrations combined. Journalists have noticed. ‘The Obama Administration is the greatest enemy of press freedom in a generation,’ according to James Risen, the New York Times investigative reporter. Risen’s language is unusually strong, but the general theme is familiar among journalists. In a typical comment, Bob Schieffer, a CBS Washington correspondent, is quoted as saying: ‘Whenever I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now . . . . This administration exercises more control than George W. Bush’s did, and his before that.’”

“It seems unlikely that this Administration is just more authoritarian or paranoid than the one before it (which was in turn more so than the one before it, and so on), or that this President and Attorney General harbor a perverse desire to antagonize the New York Times and CBS. The much more plausible explanation is that the world has changed, and government officials have responded by becoming less tolerant of practices they might have lived with before. . . .”

What are some of the changes that Strauss thinks explains this? He lists four:

  1. “The first change, inevitably, is the technology.”
  2. The second change is the mass availability of information on the Internet, information that was once difficult to obtain.
  3. The third change is in the nature of “the press.” “Today, of course, a self-anointed Ellsberg does not have to submit himself to the judgment of editors like [those of the New York Times or the Washington Post]. Someone who has government secrets can propagate them, worldwide, more or less immediately, either without any intermediary or with an intermediary who will not feel the same obligation to try to take the government’s interests into account.”
  4. The fourth change is “the economics of the media industry put pressure on everyone to cater to the lowest denominator.”

The main problem in all of this, he adds, is not such much the law. “The problem is whether the media themselves will have the incentives and the capacity to do the job that they must do, and ought to do, in a free society. There is only so much the law can do about that.”

Campus Free-Speech Watch

As the the stories and commentaries below (all recent ones) indicate, the battle for free speech on college campuses is proving, yet again, to be the biggest one of the year. What is also noteworthy is the very high success rate of challenges to campus speech codes . . . and yet many remain on the books.     

  1. College Attempts to Censor Student Columnist: Q&A with Andrew Breland,” TheFireorg, June 8, 2015
  2. Robert Soave, “Campus Censorship is The Feds’ Fault,” The Daily Beast, June 6, 2015
  3. Benjamin Wermund, “Student sues Blinn College, says ‘free speech zone’ violates First Amendment,” Chron, June 6, 2015
  4. Ray Nothstine, “Boise State University to Pay $20,000 to Pro-Life Group After Backtracking on Censorship,” CP US, June 6, 2015
  5. George F. Will, “A summer break from campus muzzling,” Providence Journal, June 5, 2015
  6. BSU changes policy, drops lawsuit with campus group,” Associated Press, June 4, 2015
  7. Greg Piper, “Democratic lawmaker defends anti-Christian campus policies at hearing,” The College Fix, June 2, 2015
  8. Brenda Schory, “Waubonsee paid $132K to settle free-speech lawsuit,” My Suburban Life, June 5, 2015
  9. Donald A. Downs, “Shouting down campus speakers,” Philly.com, June 2, 2015
  10. Another university gets ‘green light’ for First Amendment-friendly campus,” News Now, May 29, 2015

Congressman Louie Gohmert on First Amendment Rights in Universities & Schools (June 2015: re statement made at House Judiciary Subcommittee on Constitution and Civil Justice Hearing)

Group Launches Litigation Campaign to Challenge Campus Speech Codes,” Concurring Opinions, FAN 21.1, Jul2 2, 2014

Seinfeld: “I don’t play colleges. They’re so PC.”

This from a Washington Post news story by Justin Wm. Moyer: “Jerry Seinfeld himself has taken a stand — against political correctness on campus. The 61-year-old comedian told an ESPN interlocutor that he avoids performing at universities because of trigger warnings, speech codes and other First Amendment umbrage.”

“‘I don’t play colleges,’ Seinfeld said on The Herd with Colin Cowherd. ‘. . . I hear a lot of people tell me, ‘Don’t go near colleges. They’re so PC.’”

Flashback: Politically Incorrect: “Racist” jokes – David Spade, Sarah Silverman & Bill Maher

Check out this YouTube video of an old Bill Maher show — really quite good back-and-forth.

* * * * *

Journalists, Jails & the First Amendment

“For the first time we have assembled, in one place, virtually all the journalists who’ve gone to jail in the United States for doing a vital part of their job. . . Tonight we’re going to hear their stories.” — John M. Donnelly (See video here.)

* * * * *

Senator Cruz & Shaun McCutcheon

Senator Cruz & Shaun McCutcheon

Shaun McCutcheon — Round ‘n About

→ Luke Mulins, “Shaun McCutcheon Blew Up Campaign-Finance Law and Became a GOP Hero. Then He Set His Sights on Paris Hilton,” The Washingtonian, June 7, 2015

New & Notable Blog Posts

New & Forthcoming Scholarly Articles

  1. Jessica Bulman-Pozen & David E. Pozen, “Uncivil Obedience,” Columbia Law Review(2105)
  2. Daniel E. Herz-Roiphe, “Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment,” Michigan Law Review: First Impressions (2015)
  3. Eugene Volokh, “Gruesome Speech,” Cornell Law Review (2015)
  4. Mohamed H. Aziz , “Counter Terrorism Measures via Internet Intermediaries: A First Amendment & National Security Dilemma,” Journal of Law and Cyber Warfare (forthcoming 2015)
  5. Jordan M. Singer, “Judges on Demand: The Cognitive Case for Cameras in the Courtroom,” Columbia Law Review: Sidebar (2015)
  6. John Korevec, “‘McDonald Does Dallas': How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate,” Southern California Law Review (2015)
  7. Paul J. Larkin Jr., “Revenge Porn, State Law, and Free Speech,” Loyola Los Angeles Law Review (2014)

News, Op-eds, Commentaries & Blog Posts

  1. Tim Cushing, “New Mexico Judge Says First Amendment Is Subservient To The ‘Dignity Of The Court’,” TechDirt, June 8, 2015
  2. George Will, “Campaign-Finance Reformers’ First Amendment Problem,” National Review Online, June 6, 2015
  3. Gene Policinski, “Inside the First Amendment — A reminder to remember — rededicating the Journalists Memorial, The Morning Sun, June 6, 2015
  4. Mike Goodwin, “Supreme court dodges First Amendment issue, but still puts limits on criminalizing speech,” R Street, June 5, 2015
  5. David Keating, “Another View: Demand for nonprofits’ donor lists violates First Amendment,” Sacramento Bee, June 5, 2015
  6. Charlie Butts, “Porn lawyers claim First Amendment right to hire kids,” NewsNow, June 6, 2015
  7. Ruthann Robson, “Supreme Court Dodges First Amendment Issue in Facebook Threats Case,” Constitutional Law Prof Blog, June 1, 2015
Professor Elliott Visconsi.

Professor Elliott Visconsi

Notre Dame Online Video Lecture Series on First Amendment Law

The Notre Dame Office of Digital Learning offers an informative and engaging overview of First Amendment free expression law in a series of video lectures (or “modules” as they are tagged). The lectures are given by Professor Elliott Visconsi.

  1. Why the First Amendment? 
  2. Arguing Free Expression
  3. Rise of Individually Centered First Amendment
  4. Sedition & Incitement 
  5. What is Speech?
  6. Literariness
  7. Digitality

New YouTube Posts

  1. Alton man wins free speech case before NH Supreme Court,” WMUR-TV, June 9, 2015
  2. Hannity, “Pamela Geller, imam debate threats to free speech,” Fox News, June 7, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-09-15]

Cases Decided 

  1. Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

  1. Reed v. Town of Gilbert (argued 1-12-15)
  2. Walker v. Texas Division, Sons of Confederate Veterans (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 (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
  6. Walker-McGill v. Stuart

Review Denied*

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

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

LAST SCHEDULED FAN POST, #62: “Federal Judge Blasts Liberal Assault on the First Amendment

NEXT SCHEDULED FAN POST, #64: Wednesday, June 17, 2015

11

Thoughts on Zitovsky

I did not have this case in my top tier of ones that I’m following this term, but let me throw out a couple of observations.

1.  There is a question about whether Zitovsky had standing, as Will Baude explained in a recent NY Times op-ed.  None of the Justices said anything about this, which is one more piece of evidence for the idea that standing doctrine in the Supreme Court is only prudential.

2.  Not much was accomplished here by judicial action.  The Court would have been better off going with the idea that this is a political question (that point was rejected in a prior Supreme Court case on the same facts).  Both here and in Noel Canning the separation-of-powers question was intellectually interesting, but that’s all.  Congress and the Executive have been clashing over diplomatic issues since the dawn of the Republic–they can work it out on their own.

3.  Chief Justice Roberts’ opinion has the better of the argument.  Since Congress can take many valid actions that undercut diplomatic recognition, such as not funding an embassy, refusing to confirm an ambassador, or letting an unrecognized government leader speak to a Joint Session, I don’t see why passports are any different.  Justice Kennedy’s opinion is not persuasive on the point.