Category: General Law

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FAN 93 (First Amendment News) “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer

The main problem with the First Amendment . . . is that it overprotects speech. 

[T]he First Amendment, as now interpreted, in many ways is profoundly unjust. Silence in the face of that injustice is out of place no matter how invisible that injustice might be to academics, journalists, and citizens who have been raised in a culture that worships the First Amendment.

Steven Shiffrin

That’s right, you read it correctly. Too much free speech protection, a bad thing? Who would have thought it possible?

Yes, you can turn the clock back to the time of Walter Berns and his book Freedom, Virtue and the First Amendment (1957) to find plenty of arguments about why protecting too much free speech is a bad thing. And then there was Father Francis Canavan’s book Freedom of Expression: Purpose as Limit (1984); he, too, had serious reservations about overprotecting speech. David Lowenthal took such criticism to a new level in his book No Liberty for License: The Forgotten Logic of the First Amendment (1997). In that book Professor Lowenthal argued: “[T]he First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction. For the past three decades and more, the Supreme Court itself has led the nation away from the moderate freedom that the common good requires and generations of liberals have advocated.”

Shiffrin (on left) with First Amendment lawyer Robert Corn-Revere

Shiffrin (on right) with First Amendment lawyer Robert Corn-Revere (ACLU lawyer & law prof. Joel Gora in background) 

Same gospel, different preachers? Hardly! That’s because Berns, Canavan and Lowenthal are all conservative, quite conservative in fact. But Steven Shiffrin, conservative? Never! The emeritus Cornell law professor turned criminal defense lawyer is nothing if not liberal. And he has long flown the First Amendment banner with great pride and vigor in works such as The First Amendment, Democracy, and Romance (1990) and in Dissent, Injustice, and the Meanings of America (1999). Back in the late 1970s, he even once represented me (as co-counsel) in a state taxpayer challenge to a city ordinance banning the opening of any new bookstores.

So what gives? Has he veered over to the dark side? No, for as he sees it the problem is exactly the opposite — many of the new defenders of the First Amendment have forced it over to that side.  He said as much in his 2014 Melville Nimmer lecture at UCLA Law School. In other words, free-speech exceptionalism is an endangered idea; the days of First Amendment celebration are winding down. Simply consider the following from his next book, What’s Wrong with the First Amendment(Cambridge University Press, June-July, 2016):

I have been teaching classes in the First Amendment for nearly forty years. Students love the First Amendment. Like the overwhelming majority of their fellow citizens, they not only celebrate its protection of a basic human right; they celebrate its role as a part of their identity as Americans.

There was a time when those celebrations were justified, but I believe we have come to a point when it is thinkable that the First Amendment does more harm than good. . . . Free speech doctrine downplays the harm that speech can cause. Indeed, its most problematic assumption is that free speech is considered to be so valuable that it almost always outweighs other values with which it comes into conflict. Of course, free speech is ordinarily valuable, but there is no good reason to assume that it invariably should outweigh other values. Nor is that assumption harmless.

Shiffrin finds such First Amendment harms in the following areas:

  • privacy-invading speech
  • emotional distress
  • pre-trial publicity
  • racist speech
  • pornography
  • animal cruelty
  • violent video games
  • certain forms of commercial advertising, and
  • political speech by wealthy corporations.

Mindful of such matters, Shiffrin admonishes: “A commitment to freedom of speech need not commit us to this unwholesome path. Other Western countries, for example, have not taken this course despite their own commitments to the free speech principle.” There is, of course, more, much more. But we will have to wait for the book to come out before venturing there.

Judge Steve Shiffrin’s thesis as you will (and there will be more of that, to be sure, in the days ahead). But my sense is that this book could well mark a tipping point in the liberal ethos once wed to the First Amendment. That ethos has been in flux owing to the thinking of scholars such as C. Edwin Baker, Owen Fiss, Burt Neuborne, Tamara Piety, and Robert Post, among others.

Stay tuned — more to come in early summer.

Related Posts

FAC 4: “Steve Shiffrin, the Dissenter at the First Amendment Table,” May 12, 2014

→ FAN 40: “Steve Shiffrin & Bob Corn-Revere debate ‘What’s Wrong with the First Amendment?,'” Nov. 12, 2014

Seana Shiffrin, Speech Matters: On Lying, Morality, and the Law (Princeton University Press, 2014)

Competition in the Marketplace of Ideas

This year could well be the year of robust competition in the marketplace of free-speech ideas, what with the forthcoming publication of Floyd Abrams’s Why the First Amendment Matters (Yale University Press) and Robert Corn-Revere’s The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma (Cambridge University Press).

512N0oiVlWL._SX331_BO1,204,203,200_Other Forthcoming Books

  1. Mary Katharine Ham & Guy Benson End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (Crown Forum, July 12, 2016)
  2. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, July, 2016)
  3. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 2016)
  4. Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)

9th Circuit Uses Heightened Scrutiny in Commercial Speech Case Read More

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What is the Best Constitution in the World?

Consider this a poll.  There are many folks who are critical of the American Constitution.  If you are in this camp, I’m wondering what you would call the best global constitution. (Mind you, I don’t mean what country is governed best, as that could be largely unrelated to its constitution.)  Is it Germany? Canada? Britain?  Someplace else.  And feel free to explain why.

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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FAN 92 (First Amendment News) Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition

For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually “asserting as true” the message. — Justice William Rehnquist, dissenting Wooley v. Maynard (1977)

In the bizarre words of the Tenth Circuit, Mr. Cressman “cannot demonstrate that the Native American image is, in fact, speech to which he objects.” — Ilya Shapiro, Cato Institute amicus brief (2015)

ah-ok-plate2The case is Cressman v. Thompson. The issue raised in the Petitioner’s cert. petition to the Supreme Court is presented this way: “Oklahoma compels Keith Cressman [a United Methodist pastor] to display an image of the ‘Sacred Rain Arrow’ sculpture from his vehicle – via his standard license plate – although he objects to displaying that image. . . . The question presented is whether [consistent with Wooley v. Maynard] the State can compel citizens to display images that are objectionable to them?”

Nathan Kellum is the counsel of record for the Petitioner.

Judge Jerome Holmes

Judge Jerome Holmes

The Tenth Circuit answered the question posed above in the affirmative. Here is how Judge Jerome A. Holmes put it:”In this case, we must decide whether Oklahoma’s depiction of a Native American shooting an arrow towards the sky on its standard vehicle license plates compels Appellant Keith Cressman to speak in violation of his First Amendment rights. . . . Having determined that the Native American image is sufficiently expressive to qualify as symbolic speech, we now turn to determining whether, in relation to this speech, Mr. Cressman has established that the State has compelled him to adhere to a “view he finds unacceptable.” Wooly. Throughout this litigation, the only reason Mr. Cressman has offered for objecting to the Native American image is what he views as its links to pantheistic Native American folklore. However, a reasonable person would not derive this meaning from the image. Instead, in light of the relevant facts and history of the license plate redesign process, those viewing the image would likely connect the image to Oklahoma’s Native American history and culture. Yet, Mr. Cressman has repeatedly stated, both before this court and the district court, that he does not object to this message. His lack of objection to the only message that a reasonable observer would discern from the image is fatal to his compelled-speech claim; he has not been compelled to express a view he otherwise would not. Because Mr. Cressman must identify some message that he finds objectionable, and because he in fact does not object to the only message reasonably conveyed by the Native American image, we hold that he has not been compelled to speak in violation of his First Amendment rights.” (footnote omitted).

Judge Carolyn McHugh

Judge Carolyn McHugh

Judge Carolyn B. McHugh wrote a separate concurring opinion: “[B]ecause I do not agree the resolution of this case turns on whether the license plate at issue constitutes pure or symbolic speech, I write separately. . . . In my opinion, the analytical framework adopted by the majority and in our prior decision in this matter, Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013) (Cressman I), has been supplanted by the United States Supreme Court’s decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  . . . As I read Walker, there is no longer any question that Oklahoma was engaged in overnment speech when it selected the slogan and graphic depicted on its standard license plate. And because the license plate, as a whole, is government speech designed to deliver a message from the State of Oklahoma, I see no reason to begin our analysis by assessing whether the graphic alone constitutes speech, or whether that speech is symbolic or pure. Everyone, even Mr. Cressman, agrees Oklahoma selected a standard plate design that was intended to convey a message promoting the state. Thus, it is speech. . . Accordingly, I would hold that the Oklahoma license plate is speech, albeit government speech. . . . Having determined the license plate is speech, I would conclude that this case turns not on whether Mr. Cressman objects to the image, as opposed to the words, depicted on the license plate, but rather on the application of traditional First Amendment principles governing compelled speech.”

Petitioner’s Arguments: In his cert. petition to the Court, Mr. Vellum made the following main arguments:

  1. “The Tenth Circuit’s Decision Disregards Supreme Court Precedent and Creates a Circuit Conflict in Holding Widely-Produced Images are Not Pure Speech.”
  2. “The Tenth Circuit’s Decision Breaks with Supreme Court Precedent and Adds More Divergence to an Existing Circuit Split in Holding Symbolic Speech is Protected to the Extent it Presents an Identifiable Message to the Reasonable Observer.”
  3. “The Tenth Circuit’s Decision Flouts Supreme Court Rulings in Holding State Can Compel Citizens to Convey Symbolic Speech Unless the Basis for Objection Matches the Inference Drawn by the Reasonable Observer.”

The Cato Institute filed an amicus brief submitted by Ilya Shapiro (joined by Jayme Weber). In that brief, Mr. Shapiro made the following points:

1.  “The Court Should Grant Certiorari to Clarify the Meaning of ‘Symbolic Speech'”

         A. “The Court Has Never Applied the Term ‘Symbolic Speech’ to Anything Other than Expressive Conduct

        B. “Visual Art Is Pure Speech, Not Expressive Conduct”

        C. “Circuit Courts Are Split on Whether “Pure Speech” Is Reserved for Words”

2. “The Court Should Grant Certiorari to Establish that a Person’s Reasons for Objecting to Compelled Speech  are Immaterial to the Question Whether He is Being Compelled to Speak”

      A. “Visual Art Is Inherently Open to Interpretation; No Single Interpretation Is Authoritative”

     B. “Cressman’s Reasons for Objecting to the Image Are Irrelevant.”

     C. “As in Religious-Freedom Claims, Courts Should Not Evaluate the Reasons Behind an Objection to a  Speech Compulsion”

 See also: Ilya Shapiro & Jayme Weber, “Free Speech Doesn’t Depend on the Eye of the Beholder,” Cato at Liberty, Dec. 30, 2015

Idaho A.G. to Appeal “Ag-Gag” Ruling

imagesThey’re called “ag-gag” laws (Mark Bittman writing in the NYT coined the term in 2011.)  Under such laws, it is a crime to secretly videotape industrial feedlots and slaughterhouses. Likewise, it is a crime to do so for the purpose of exposing pollution and animal mistreatment and abuse in large-scale farming operations. “Ag-gag” laws have been proposed in some 20 states. While such measures have failed in states such as Arkansas, California, Indiana, and Tennessee (among other states), they remain pending in yet many other states. Eight states — such as Idaho, North Carolina,Utah and Wyoming — have enacted such laws.

The Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the American Civil Liberties Union of Idaho, and the Center for Food Safety challenged Idaho’s Ag-Gag law (Section 18-7042, Idaho Code) in the District Court for the District of Idaho. The court in Animal Legal Defense Fund v. Otter (Aug. 3, 2015) struck the law down on First Amendment grounds. Last August, Chief Judge B. Lynn Winm found the law to be impermissibly content-based and was drafted in ways designed to “suppress speech critical of the agricultural industry” rather than to “protect private property as the State claims.”

The Idaho law is deeply distressing because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech. It even would criminalize a whistle-blower who took a picture or video of wrongdoing in the workplace. I am confident that this law will be struck down under Ninth Circuit and Supreme Court precedents. — Erwin Chemerinsky, March 17, 2014

The Reporters Committee, joined by 15 other news organizations, filed an amicus brief (authored by Charles A. Brown & Bruce D.Brown) in which it argued that the Idaho statute weakens food safety guarantees at the same time it stifles free speech. Professor Chemerinsky also filed an amicus brief in the case.

 Idaho’s Attorney General is appealing the case to the Ninth Circuit.

See Eugene Volokh, “Thoughts on the court decision striking down Idaho’s ‘ag-gag’ law,” The Volokh Conspiracy, Aug. 6, 2015

See Alan K. Chen & Justin Marceau, “High Value Lies, Ugly Truths, and the First Amendment,” Vanderbilt Law Review (2015) (discussing video-recording & ag-gag laws, among other things)

11th Circuit Strikes Down City Tattooing Law

& the words were made in flesh

& the words were made in flesh

Here is how Judge Jill Pryor’s opinion in Buehrle v. City of Key West (11th Cir., Dec. 29, 2015) begins: “The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.”

Later in her opinion, Judge Pryor added: “We have never addressed whether tattooing is a protected form of artistic expression. The Ninth Circuit encountered this issue in Anderson v. City of Hermosa Beach (2010), where it held that tattooing was protected speech and that Hermosa Beach constitutionally could not ban tattoo establishments from operating in the city. We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, ‘[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.'”

. . . .

Judge Jill Pryor

Judge Jill Pryor

“The First Amendment,” she added, “requires more. We are not at liberty simply to ‘presume the evidence’ needed to sustain the ordinance. Peek-A-Boo Lounge, 337 F.3d at 1267. ‘[T]he government bears the burden of showing that the articulated concern has more than merely speculative factual grounds.’ Flanigan’s Enters., Inc. v. Fulton Cty., 242 F.3d 976, 986 (11th Cir. 2001). The City failed to satisfy this burden. On the record before us, the City has presented insufficient evidence that it had a reasonable basis for believing that its ordinance would actually serve the significant governmental interests it propounds. Perhaps, if the district court chooses to permit the introduction of new evidence on remand, the City can produce the kind of evidence that would satisfy its burden, but so far it has not done so.”

Judges Stanley Marcus and William Pryor joined the opinion.

Counsel for Plaintiff-Appellee: Wayne Larue Smith & Brett Tyler Smith

See also Damon Root, “Federal Court Rules Tattooing a Constitutional Right Under the First Amendment,” Reason.com, Jan. 15, 2016

Campus Free-Speech Watch

 “Virginia Professors Adopt Statement Championing Academic Freedom, Free Speech,” The College Fix, Jan. 5, 2015

“The university is the one institution where such open, diverse, free and lively discussion may occur,” states the resolution. “Academic freedom should be promoted, protected, advanced and cherished by all levels of the university and college community.”

The resolution, approved unanimously in November, was penned by political science Professor Garrett Ward Sheldon, who told The College Fix in an email this week that “restricting, censoring and punishing speech is clearly an attempt to control people’s thinking and actions.”

“The most important part of this resolution … is that the proper response to bad ideas is not to forbid or suppress them (which is impossible anyway) but to REFUTE them with good, reasonable ideas,” Sheldon said. “That’s what the academy is all about: teaching people to think, question, engage, debate, discuss, and resolve differences intellectually.”

“The argument that some words are so bad or hurtful that they should be forbidden, prohibited, and punished or sanctioned, is used by all political, social and religious extremists,” he added. “They often will say ‘Well, we respect freedom of speech, except in this clearly bad area’ (racism, sexism, insults, etc.) The danger with that, as the Supreme Court has stated, such restrictions create a ‘chilling effect’ or ‘self-censorship’ on all speech and harm free discourse, learning and progress.” . . . . 

Sheldon said UVa-Wise’s faculty were inspired by other, similar resolutions passed in support of free speech and academic freedom, such as those at the University of Chicago and Princeton.

  1. Robby Soave, “America’s Great Free Speech Battleground,” The Daily Beast, Jan. 6, 2016
  2. Laurentian University says removing prof from course about breaking rules, not freedom of speech,” CBC News, Jan. 6, 2016
  3. Bob Kellogg, “Judge drops student’s free speech lawsuit,NE News Now, Jan. 5, 2016
  4. Catherine J. Ross, “Strangling the Free Mind,” USA Today, Jan. 4, 2016
  5. Speech, Safety and Seinfeld: College Policies on Free Speech,” UWire, Jan. 2, 2016

411Z6ULItfL._SX329_BO1,204,203,200_New & Forthcoming Books

  1. Richard Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, Jan. 2016)
  2. Wayne Batches, The Right’s First Amendment: The Politics of Free Speech & the Return of Conservative Libertarianism (Stanford University Press, March 30, 2016)
  3. Kimberly Strassel, The Intimidation Game: How the Left Is Silencing Free Speech (Twelve, April 19, 2016)
  4. Tom Slater, editor, Unsafe Space: The Crisis of Free Speech on Campus (Palsgrave Macmillan, April 27, 2016)

Forthcoming Scholarly Articles

  1. Jonathan Adler, “Compelled Commercial Speech and the Consumer ‘Right to Know,'” Arizona Law Review (2016)
  2. Laura M. Weinrib, “Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken,” Emory Law Journal (2016 forthcoming)
  3. John A. Humbach, “The Constitution and Revenge Porn,” Pace Law Review (2016)
  4. Daniel A. Horwitz, “A Picture’s Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment,” Science & Technology Law Review (2016)
  5. Dorlin A. Armijo, “Online Free Speech or Materially Supporting Terrorism?,” Science & Technology Law Review (2015)
  6. Jennifer Herbst, “Off-Label ‘Promotion’ May Not Be Merely Commercial Speech,” Temple Law Review (2016)

Notable Blog Posts 

Eugene Volokh, “The First Amendment, the right of publicity, video games and the Supreme Court,” The Volokh Conspiracy, Jan. 4, 2016

“The ‘right of publicity’ gives people considerable exclusive control over the commercial use of their name, likeness and other identity attributes. But obviously, that control can’t be complete . . . . But what are the boundaries of that right? The Court has never made that clear, and lower courts are hopelessly divided. . . .”

“This is why the Supreme Court petition in Electronic Arts v. Davis (you can read the relevant documents here) is so interesting. “Petitions for certiorari” — requests that the Court review a lower court decision — are generally longshots. But this petition, which the Court is considering Friday, is both very important and unusually likely to be heard. . . .”

“Prof. Jennifer Rothman (Loyola L.A., and author of Rothman’s Roadmap to the Right of Publicity) and I co-wrote an amicus brief on behalf of 31 law professors supporting the petition . . . .”

“If you want to see more about the five tests — the transformative use test, the transformative work test, the relatedness test, the predominant purpose test and the balancing test — see the brief, which is signed by Profs. Jack Balkin, Erwin Chemerinsky, Mark Lemley, Martin Redish, Steven Shiffrin, Geoffrey Stone, Rebecca Tushnet and many more.”

See FAN 83, “Paul Smith Files Cert. Petition in Right of Publicity Case,” Nov. 4, 2015

News, Op-eds & Blog Posts

  1. Hans von Spakovsky, “How Lawmakers Stopped Part of Obama’s Assault on First Amendment,” The Daily Signal, Jan. 5, 2016
  2. Michael Barone, “No, Economist, the First Amendment does give people ‘a free pass to go round saying hateful things,‘” Washington Examiner, Jan. 5, 2016
  3. Fighting attacks on free speech in ’16,” Daily Chronicle, Jan. 5, 2016
  4. David Moshman, “Martin Luther King on the First Amendment,” Huffington Post, Jan. 4, 2016
  5. Hady Karl Mawajdeh, “Dallas Attorney Involved In A First Amendment Case About Hip-Hop,” KUT.org, Jan. 4, 2016
  6. Kaitlyn Schallhorn, “Mizzou Administrator: First Amendment Isn’t a ‘Free Pass to Go Round Saying Hateful Things,’” The Blaze, Jan. 4, 2016
  7. Gene Policinski, “What a strange year for First Amendment freedoms,” The Spectrum, Jan. 3, 2016
  8. Maxine Bernstein, “Federal judge finds Portland mayor, city violated local activist’s First Amendment rights,” The Oregonian, Dec. 31, 2015

The Court’s 2015-2016 First Amendment Docket

Read More

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FAN 91 (First Amendment News) 2015: The Year in Review, including “the best of”

This is the 50th FAN post for this year. The others are listed below by month. Also below are some highlights of the past year along with a few “best ofs” of 2015:

Supreme Court: The Court decided four First Amendment free speech cases:

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

The biggest surprise was the Chief Justice’s vote in William-Yulee followed by Justice Thomas’ vote in Walker.  Speaking of Justice Thomas, his majority opinion in Reed is likely to be the most important free speech case of the 2014-2015 Term.

Biggest First Amendment issue of 2015: Campus free-speech controversy

RetirementsLaura W. Murphy, the ACLU’s Washington legislative director, retired as did Dave Fidanque of the ACLU of Oregon.

Deaths: We had our losses in 2015: Al Bendich, the ACLU lawyer who represented both Lenny Bruce and Lawrence Ferlinghetti died as did Herald Price Fahringer, a noted criminal defense lawyer who did much to defend the cause of free speech.

Tweeting Free Speech: The Volokh Conspiracy went over to the Twitter side in 2015: @VolokhSpeech

MonumentalMobile Monument to the First Amendment (Thomas Jefferson Center)

The First Amendment & The Best of 2015

Best Supreme Court opinion: Reed v. Town of Gilbert

→ Best Supreme cert. petition: Paul M. Smith & Alonzo Wickers, IV (see here)

Best Supreme Court amicus brief: Ilya Shapiro & Robert Corn Revere (see here)

 Best lower court opinions: In re Simon Shiao Tam (Ct. App. Fed. Cir.) and Backpage.com v. Dart (7th Cir.)

Best state high court opinion: City of Keene v. Cleaveland, et al (N.H.)

Best First Amendment champions: Megan Kelly and Tim Tai

 Best group defending First Amendment rights: FIRE

→ Best report: “After-Action Assessment of the Police Response to the August 2014 Demonstrations in Ferguson, Missouri

 Best speech: Floyd Abrams, “Liberty is Liberty

Best newspaper article: Adam Liptak, “Court’s Free-Speech Expansion Has Far-Reaching Consequences,” New York Times

 Best interview: Bill Kristol’s interview with Justice Samuel Alito

 Best book: Catherine Ross, Lessons in Censorship: How Schools & Courts Subvert Students First Amendment Rights (see review here)

Best law review article: Eugene Volokh, “Gruesome Speech,” Cornell Law Review 

→ Best commentary: Amanda Shanor & Robert Post, “Adam Smith’s First Amendment,” Harvard Law Review Forum

 Best op-ed: Geoffrey Stone, “ISIS, Fear, and the Freedom of Speech,” Huffington Post (see here also)

→ FAN Posts for 2015 ←  Read More

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FAN 90 (First Amendment News) Law Professors Urge Justices to Honor Stare Decisis in Union 1-A case

Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. — John Roberts (Sept.13, 2005)

Andrew Pincus

Andrew Pincus

“A review of this Court’s decisions over the last 75 years—from 1940 through 2015— reveals that the Court has expressly overruled only ninety-one constitutional precedents, or slightly more than one case per Term. And when the Court does overrule a precedent, it typically—in 57 percent of the cases—acts unanimously or nearly-unanimously, with two or fewer Justices in dissent. In only twenty-one cases (23 percent) did a bare majority of the Court overrule a constitutional precedent.”

Thus did Andrew Pincus argue in an amicus brief he filed in Friedrichs v. California Teachers Association, et al.The brief was submitted on behalf of  four constitutional scholars in support of the Respondents. The professors are:

  1. Walter E. Dellinger III, Douglas B. Maggs Professor Emeritus of Law, Duke Law School
  2. Michael H. Gottesman, Professor of Law, Georgetown University Law Center
  3. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law, and
  4. David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School.
Professor David Strauss

Professor David Strauss

In urging the Court not to overrule the unanimous judgment in Abood v. Detroit Board of Education (1977), Mr. Pincus and the law professors offer five reasons to support the Court’s invocation of stare decisis: 

  1. First, “overruling Abood will significantly disrupt settled legal rules in related areas. . . .Because the legal principle underlying Pickering and Abood is essentially identical, overruling Abood would undermine the more relaxed First Amendment standards governing government regulation of employee speech applied in Pickering and its progeny. . . . Overruling Abood . . . would lead inevitably to significantly greater limitations on government regulation of employee speech in the workplace.”
  2. “Second, Abood is a forty year-old precedent decided unanimously and reaffirmed multiple times by a unanimous Court. It has been applied consistently in the government employee context and relied upon by the Court to resolve First Amendment questions in related contexts involving government restrictions on associational interests.”
  3. “Third, Abood has created significant reliance interests. Twenty-three States and the District of Columbia have enacted statutes in reliance on this Court’s decision—and not just those statutes, but these States’ entire collective bargaining regime, would have to be revised if Abood were overruled.”
  4. “Fourth, no changes in relevant facts or in society or in legal principles support overruling Abood. The decision’s basic premise—that the government’s vital interest in structuring its workforce permits gov- ernment as an employer to take actions that would be unconstitutional in other contexts—has been con- sistently reaffirmed by this Court in a variety of contexts,” and
  5. “Fifth, the Abood standard is workable, as the de cisions of this Court and the lower courts make clear.”

Additionally, they argue that

overruling Abood would likely trigger an avalanche of lawsuits against government employers and unions seeking agency fee refunds. That has already happened in the wake of this Court’s decision in Harris: plaintiffs have filed class actions in a number of states, including New York, Oregon, and Washington. One suit seeks the return of over $20 million in agency-shop fees paid by childcare workers.

Will such arguments stay the reversing hand of the same Roberts Court that set aside stare decisis in cases such as Citizens United v. FEC (2010), McDonald v. Chicago (2010), Gonzales v. Carhart (2007), and Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007)? In all of those cases, among others, existing precedents were overruled by a bare majority of the Court.

→ Even if the Court should decline to formally overrule Abood, might it not do so functionally, by way of “stealth overruling“? After all, that tactic has been to such good use in the Miranda line of cases that even Chief Justice William Rehnquist (a longtime Miranda critic) declined to overrule the landmark Warren Court precedent when he had the chance to do so.

 The other Counsel for the Amici are: Eugene Fidell (Yale Law School Supreme Court Clinic), Charles Rothfeld, Michael Kimberly, and Paul Hughes (all of Mayer Brown).

→ See also FAN 28 (First Amendment News) — “The Demise of Stare Decisis?” (Aug. 20, 2014)

[ht: Tony Mauro]

Court Strikes Down Trademark Law on First Amendment Grounds Read More

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Revised Paper on the Bill of Rights

I’ve posted a substantially revised version of my draft article on “How Did The Bill of Rights Become the Bill of Rights?”  This draft reflects some changes in my thinking as I’ve been writing the book and doing additional research.  In particular, there is more emphasis here on how the Bill of Rights was used (prior to World War II) to justify extensions of federal power; a process that culminated in FDR’s “Second Bill of Rights” speech in 1944.

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Abrams & Collins: Confronting Trump — An American Debate Censorship Cannot Stop

By Floyd Abrams & Ronald KL Collins

Shock. There is no other way to describe the outcry in response to Donald Trump’s latest venomous statements, this time targeting all Muslims and proposing what he characterized as a temporary ban on their entry into the United States. A passionate dialogue is proceeding over those statements. It is a necessary debate, yet one that could happen only in America with complete assurance that no criminal proceedings will follow.

The ever animated Mr. Trump

The mercurial Mr. Trump

The European approach to such public support for discriminatory conduct is different than ours. In the Netherlands, right-wing legislator Geert Wilders faces a criminal trial next year for asking followers who attended a speech of his if they wanted “more or less” Moroccans in the nation, to which they responded “Less, less, less.” The charge is that his remarks fomented “discrimination and hatred.” In Belgium, a member of Parliament was convicted for distributing leaflets saying: “Stop the Sham Immigration Policy. Send European sub-seekers home” and “stand up against the Islamification of Belgium.” The European Court of Human Rights affirmed the conviction on the ground that such language could lead to hatred of foreigners, especially by “less knowledgeable members of the public.” In England an individual was tried and convicted for carrying a poster that showed the World Trade Center ablaze with the caption “Islam out of Britain-Protect the British People.” The European Court of Human Rights let the conviction stand, concluding that since the poster constituted a “public expression of attack on all Muslims in the United Kingdom” that the speech could provide a basis for criminal sanctions.

All these rulings would be inconceivable in the United States because of the First Amendment. Unlike Europe where hate speech laws could place Mr. Trump in criminal jeopardy, in our better moments here we prefer to openly contest and condemn such odious speech rather than criminalize it. But that makes the speech no less abhorrent.

The European way of dealing with such speech has its defenders. Offensive speech can be harmful, sometimes dangerously so. Europe has its own history which may lead it to a different calibration of what speech may be permitted and what not. The American alternative chooses debate over suppression, the risks of speech over those of governmental overreach.

The result is that Mr. Trump is free to vent as he chooses and the public is free to respond as stridently as it chooses. Rachel Maddow’s characterization of Mr. Trump on MSNBC as a fascist was one response; Senate Majority leader Mitch McConnell’s dismissal of Mr. Trump’s views as “completely and totally inconsistent with American values” was another.

But there is no basis under American law to stop or punish Mr. Trump’s ideas. As Justice Holmes eloquently put it 86 years ago:

[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us, but freedom for the thought that we hate.

That is our First Amendment way.

As a result, Mr. Trump is free to speak as he likes and then to defend his views in the marketplace of ideas. It now rests with the public to pass judgment on the man and his ideas.*

Floyd Abrams is a partner at Cahill Gordon & Reindel and a Visiting Lecturer at Yale Law School. Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington in Seattle.

* For a discussion of the larger points highlighted above, see Timothy Zick’s The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, 2014) .

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FAN 89 (First Amendment News) Corn-Revere Brings First Amendment Challenge Against “Stop Advertising Victims of Exploitation” Act

Fresh from his victory in Backpage.com v. Dart (7th Cir., Nov. 30, 2015), noted First Amendment lawyer Robert Corn-Revere recently filed a complaint in the U.S. District Court for the District of Columbia in the case of Backpage.com v. Lynch. The complaint for declaratory and injunctive relief alleges:

  1. “This is an action challenging the constitutionality of the “Stop Advertising Victims of Exploitation” Act (the “SAVE Act”), which amended 18 U.S.C. § 1591, and was enacted as part of Public Law 114-22 on May 29, 2015. The Act added the term “advertises” among the predicate acts for criminal sex trafficking in Section 1591, punishable by prison terms ranging from ten years to life.”
  2. “Statements of Congressional sponsors and others in support of the SAVE Act and prior bills that led to the Act emphasized their intent to target the classified advertising website Backpage.com. Members of Congress and others have assailed Backpage.com for many years, despite the website’s extensive efforts to prevent, screen and block improper ads from users. Three states enacted criminal statutes to censor adult ads on Backpage.com, but  federal courts struck down all three laws, holding that the laws would have chilled First Amendment protected speech, were unconstitutionally vague and overbroad, lacked sufficient scienter requirements, and could not withstand strict scrutiny.”
  3. “Provisions of the SAVE Act targeting websites and others that publish or disseminate speech are also unconstitutionally vague, overbroad and infringe First Amendment rights for similar reasons. . . .”
  4. “[I]f the SAVE Act were interpreted to permit criminal liability if a website receives an allegation that a post concerns sex trafficking, this would create a notice- and-takedown regime that would impermissibly chill speech. Contrary to statements of some of the SAVE Act’s Congressional supporters, criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking. Given the enormous volume of third-party content they receive and disseminate every day, websites cannot possibly review every post to guarantee nothing is unlawful. Although it is unclear what the SAVE Act means, if it imposes notice-based criminal liability, then the Act is also unconstitutional because it would permit a “heckler’s veto” contrary to Reno v. ACLU, 521 U.S. 844 (1997).”
  5. “On the whole, the SAVE Act fails to give websites, publishers and others a reasonable opportunity to know what conduct is prohibited and what is permitted. With all its vagaries, the Act could allow ad hoc and subjective interpretations by prosecutors with attendant dangers of arbitrary and discriminatory application. And, given the severe penalties under the Act—up to life imprisonment—the risks and likely speech-chilling effect of the law is also severe. As a result, the Court should declare the SAVE Act unconstitutional and enjoin its enforcement.”

Ronald London and Lisa B. Zycherman were also on the complaint as counsel for the Plaintiff.

Former Correction Officials & Law Professors Weigh in on 11th Circuit Prison News Case Read More