Category: Supreme Court


FAN 86 (First Amendment News) Court may rule on occupational-speech petition soon

The United States Supreme Court has said that “the constitutional right of free expression is powerful medicine.” Powerful and essential, and it needs to be administered to everyone, including physicians and those regulating their practice. Laurence Tribe

Most occupational licensing laws – at least those involving professions that have traditionally been subject to significant regulation – should not trigger rigorous review under the First Amendment, even if these laws regulate on the basis of the content of the speaker.Vikram Amar

The case is Hines v. Alldredge and the issue in the case is whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review. The case was considered by the Justices in their Conference yesterday.

Dr. Ronald Hines

Dr. Ronald Hines

Facts: Texas requires veterinarians to conduct a physical examination of an animal on its premises before they can practice veterinary medicine on that animal. That law gave rise to a First Amendment challenge owing to the fact that Ronald Hines, a retired Texas-licensed veterinarian, launched a website and posted articles about pet health and care. As the Fifth Circuit noted when the case was before a three-judge panel, “these general writings soon turned to more targeted guidance . . . . [whereupon Dr. Hines] began ‘to provide veterinary advice to specific pet owners about their pets.’ This advice was given via email and telephone calls, and Hines ‘never physically examine[d] the animals that are the subject of his advice,’ though he did review veterinary records provided by the animal owners. . . . Hines charged a flat fee of fifty-eight dollars for his veterinary advice, though he would waive this fee if a pet owner could not afford to pay. He did, however, refuse to give advice if he felt that a physical examination was required, and he did not prescribe medication.”

“In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law.” Thereafter, he was placed on one year probation, received a stayed suspension of his license, and had to pay a $500 fine. He was also required to  retake the jurisprudence portion of the veterinary licensing exam.

Dr. Hines challenged the Texas law and sought declaratory and injunctive in federal court. He challenged the physical examination requirement as applied to him as a violation of his rights under the First Amendment Fourteenth Amendments (Due Process and Equal Protection).

Circuit Court ruling: In an opinion by Judge Patrick Higginbotham, the Fifth Circuit denied those challenges.  In that regard, Judge Higginbotham declared: “Whether Hines’s First Amendment rights are even implicated by thisregulation is far from certain. In defining the permitting practice of veterinary medicine for which its license is required, Texas only imposes a narrow requirement upon the veterinarian. But surely, if this restriction on the veterinarian’s medical practice is within its scope, it is but incidental to the constraint, and denies the veterinarian no due First Amendment right.”

→ Cert. Petition: A petition for certiorari was filed by Jeffrey Rowes, counsel of record, along with Dana Berliner and Matt Miller, all from the Institute for Justice. In their brief they argue:

Jeffrey Rowes

Jeffrey Rowes

“This Petition raises a matter of first impression in this Court about occupational speech. While such speech is widespread, this Court has never squarely addressed its constitutional status. The Fifth Circuit below held that restrictions on veterinary-medical advice are not subject to First Amendment scrutiny. There is now a direct, outcome-determinative split of authority between the Fifth and Eleventh Circuits on the one hand, and the Third and Ninth Circuits on the other, over whether the First Amendment protects medical advice. More generally, the decision below also deepened intractable splits of authority over whether restrictions on occupational speech are ever subject to First Amendment scrutiny.” Thus, they argue:

  1. “Occupational speech cannot be classified as conduct and stripped of First Amendment protection because the distinction between general speech and occupational speech is itself a content-based distinction,” and
  2. “The government’s motive in regulating occupational speech does not remove that speech from the First Amendment.”

Amicus briefs have been submitted by:

Supporting Petitioner

Related Scholarly Works

→ Recent Blog Posts 

First Amendment Salon: Abrams & Post on Reed v. Gilbert Read More


The McReynolds/Brandeis Picture

I want to draw your attention to a new article in The Journal of Supreme Court History (no link available right now) that debunks the famous story that Justice McReynolds refused to sit next to Justice Brandeis for a Court portrait in 1924 and thus there was no official photo taken in that year.

While the story sounds true because Justice McReynolds was a weird person and an anti-Semite, there is nothing to this particular claim.

  1. The Supreme Court did not sit every year for an annual photo in those days.
  2. Justices McReynolds and Brandeis are pictured together at other functions in the 1920s.
  3. The claim that McReynolds refused to sit next to Brandeis came from a book written in the 1960s. The scholar in question relied on a letter written by McReynolds to Chief Justice Taft, but the letter in question says nothing about Brandeis.

FAN 85 (First Amendment News) “Is phone sex violent?” — Posner challenges lawyer in online classified advertising case

There’s no sex in your violence — Bush, “Everything Zen

Judge Richard Posner

Judge Richard Posner

Seventh Circuit Judge Richard Posner was in a plucky mood last week when Backpage,com v. Dart was argued before his panel, which included Judges Diane Sykes and Kenneth Ripple. ) More about Judge Posner (and sex) shortly, but first a few things about the case. is the second largest online classified advertising website in the U.S., after Craigslist. Users post more than six million ads monthly in various categories, including buy/sell/trade, automotive, real estate, jobs, dating and adult. Users provide all content for their ads; hosts the forum for their speech. Thomas Dart, the sheriff of Cook County, wanted to eliminate online classified advertising of “adult” or “escort” services. And why? As the Sheriff saw it, such ads were little more than solicitations for prostitution. He also argued that these ads facilitate human trafficking and the exploitation of children. Last June the Sheriff sent letters to the CEOs of Visa and Mastercard to “request” that they “cease and desist” allowing their credit cards “to be used to place ads on websites like, which we have objectively found to promote prostitution and facilitate online sex trafficking.” It worked; the companies blocked the transactions.

→ District Court: went to federal court and first sought a temporary restraining order and later a  preliminary injunction based on First Amendment grounds. District Judge John J. Tharp Jr. presided over the case. “In arguing that it is likely to succeed on the merits,” said Judge Tharp, “Backpage contends that Dart’s actions constitute precisely the type of informal prior restraint condemned as a First Amendment violation in Bantam Books, Inc. v. Sullivan (1963).” Judge Tharp thus concluded: “The Court makes no judgment as to the merits of Backpage’s claims, and any factual findings it has made are preliminary only and not binding in any proceedings on the merits.” On August 21, 2015, the court denied’s motion for a preliminary injunction, thought it had previously granted a TRO in the case. In any event, appealed.

 The Cato Institute filed an amicus brief as did the Center for Democracy & Technology (see here) in support of the Petitioner.

Excerpts from Oral Arguments in the 7th Circuit

Below are select excerpts, which I transcribed, from the oral arguments in the Seventh Circuit. The arguments began with a presentation by Robert Corn-Revere. Judge Posner did not pose any questions to Appellant’s counsel anytime during the arguments, though Judges Sykes and Ripple did ask a few questions. Ms. Hariklia Karis argued on behalf of Appellee Sheriff Dart. Her arguments, by contrast, were met at the outset and thereafter with vigorous questioning from Judge Posner as indicated by the excerpts below.

Judge Posner: “You know, a police official has to be very careful in what he says. This is not Tom Dart as a private citizen, writing a letter to a newspaper or something, saying he doesn’t like Backpage. This is all done, office of the Sheriff, official stationary  — well anybody receiving an offcial communication from a sheriff is going to feel there is an implicit threat to follow this up with legal action.”

Ms. Karis: “Your honor, both VISA and Mastercard have both established that they did not receive or perceive this an an offical threat. . . .”

Judge Posner: “You believe that?”

Ms. Karis: “I absolutely believe that, and the the evidence is undisputed –“

Judge Posner: “Well, that’s ridiculous. These people, these companies do not feel they can defy an official . . . There’s nothing, you know, that Dart has.”

Ms. Karis: “VISA has spoken and submitted an affidavit in this court, which the district court considered, in which their vice-president for global brand reputation specifically said [that] he did not view the letter –“

Judge Posner: “Well what do you expect them to say?”

Ms. Karis: “Your honor –“

Judge Posner: “We’re knuckling under to threats? . . . Look, the tone of [the Sheriff’s letters] is so unprofessional. He talks about a violent industry; is phone sex violent? . . . “

Ms. Karis: “It can be.”

Judge Posner: “Really?”

Ms. Karis: “It certainly can.”

Judge Posner: “How?”

Ms. Karis: “Depending on whether children are involved — “

Judge Posner: “We’re not talking about children here. . . . And all the adults are getting swept up with the children?”

Ms. Karis: “The adults are not getting swept up with the children.”

Judge Posner: “Well they are. Adults who participate [chuckling] in phone sex with each other are potential targets. And what about old people, old men [chuckling] who would like to be seen with a young woman. Right? That is an aspect of the escort service; it’s not all sex!”

Ms. Hariklia Karis

Ms. Hariklia Karis

Ms. Karis: “Sheriff Dart did not take down the content or propose to take down the content of Backpage’s webpage, which was not illegal conduct. MasterCard in particular, to your Honor’s question of the recipient receiving this and what can they say, MasterCard had already decided that they no longer wanted to be affiliated with Backpage one week before Sheriff Dart ever sent that letter out. That evidence is undisputed.”

 Judge Posner: “Well, I’m sure that VISA and MasterCard don’t want to spend their time fending off whacks from Sheriff Dart. Right? These companies make a decision. Right? They don’t want to be slandered by a high government official.” Read More


FAN 84 (First Amendment News) Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending

It’s been almost 15 years since the Court last heard a First Amendment case involving the press — Bartnicki v. Vopper (2001). That was during the Rehnquist Court era and four of the Justices that sat on that case (Rehnquist, Stevens, Souter, and O’Connor) have been replaced (by Roberts, Alito, Kagan, and Sotomayor). What does that portend for the institutional press? Media lawyers are asking just that question in light of a cert. petition pending before the Court.

The case is Sun-Times Media, LLC v. Dahlstrom. Here are the issues before the Court:

  1. Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
  2. whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
  3. whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
  4. whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”

In his cert petition on behalf of Petitioner, Damon Dunn offered the following First Amendment arguments:

  1. “The Seventh Circuit Destabilized Decades of First Amendment Jurisprudence by Allowing the Press to be Sanctioned for Truthful Reporting on Matters of Public Safety”

a. “The Seventh Circuit adopted a balance that chills speech by allowing a judge to limit First Amendment     protections to the passages deemed most important”

b. “The Seventh Circuit unnecessarily answered the Bartnicki question and got it wrong by shifting the verification burden from the government to the press”

c. “The DPPA cannot withstand constitutional scrutiny if it can be utilized to chill investigative reports on public officials that pose no safety risk to them,” and

d. “The Seventh Circuit undercut constitutional protections for news gathering.”

 → In its brief in opposition, the Solicitor General’s Office argued that

  1. “the doctrine of constitutional avoidance . . .  has no application here. Petitioner’s statutory interpretation is not a plausible one.”
  2. The government also argued that “[t]he only constitutional claim petitioner raises in this Court is an alleged First Amendment right to disseminate information that it unlawfully obtained. As the court of appeals recognized, that claim lacks merit. . . . Each of the decisions that petitioner cites . . . is one in which the information was obtained lawfully by the entity that disseminated it (although the disseminating entity’s source may have originally obtained the information through unlawful behavior in which the entity was not involved). And the cited decisions indicate that the government has strong and legitimate justifications for preventing the dissemination of information by a person who acted unlawfully in obtaining it—including an interest in effectively deterring ‘the initial unlawful acquisition of that same information.'”
Katie Townsend

Katie Townsend

According to Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, “what is particularly troubling about this case is that the 7th Circuit concluded that a newspaper could be held liable under the DPPA both for obtaining information in violation of the DPPA and for publishing that information. From our perspective, this case raises very real concerns about the possible limits of Bartnicki in cases involving the publication of information that a newspaper knows (or in a Court’s view should know) was obtained unlawfully.”

[ht: Tony Mauro]

Floyd Abrams Defends (Most) Donor Disclosure Laws

In a letter to the Wall Street Journal contesting its editorial opposition to donor disclosure laws, Floyd Abrams wrote:

[Y]our opposition to disclosure requirements as reflected in your editorial “Show Us Your Donors” (Nov. 5) is not only at odds with Citizens United but with virtually all Supreme Court rulings in this area and the views of all but one of the present members of that Court. . . .

It is true that if a showing can be made that the effect of disclosure in a particular case would be, as the Court put it in Citizens United, that a “group’s members would face threats, harassment or reprisals if their names were disclosed” that a serious constitutional issue might be raised. But that is the exception, not the norm, and there is no basis to conclude that since disclosure might lead to public criticism, that is reason enough to avoid the obligation to disclose, let alone to hold it unconstitutional. . . . 

 See FAN 83.2 (First Amendment News) “Court Declines to Hear Compelled Disclosure Case”

Quote of the Week . . . from Justice Kennedy re Citizens United Read More


Summary Reversals and Oral Argument

The first per curium opinion of the Term came out today, an 8-1 reversal on a qualified immunity ruling involving a police officer.  This leads me to ask the following question:  What is the Court’s internal norm on what is required to set a case for oral argument?

If the Justices unanimously think that they should engage in error correction, I can see why they would do so without the full range of briefing and argument.  If they are not unanimous, though, then why wouldn’t the dissenters ask that the case be set for argument?  And is that a decision that occurs via a majority vote, a “rule of four” as with certiorari, or the desire of just one Justice?

Perhaps the answer is that when a case involves error correction the Justices have a tacit agreement that nobody will ask for argument.  (Why they are engaged in error correction at all is another matter.) But what if somebody does not agree that the case is an example of error correction? Moreover, calling for argument internally could result in a denial of certiorari if the other Justices thought that the case did not deserve maximum attention, and that might be a goal of the dissenter.


FAN 83.2 (First Amendment News) Court Declines to Hear Compelled Disclosure Case

This morning the Supreme Court declined to hear Center for Competitive Politics v. HarrisThe issues in the case were twofold:

  1. Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and
  2. whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.

UnknownThe case involved a California law that requires tax-exempt charitable organizations to file reports with the state Registry of Charitable Trusts. Pursuant to that law, California Attorney General Pamela Harris required such charities to submit a list of the names and addresses of its major donors. Thus, all charities soliciting donations in California must provide the state A.G. with a copy of their IRS 990 form, which contains such donor information. That information is not made public but is used by the state A.G. to ensure compliance with the law and to safeguard against fraud and illegality.

The California law was challenged by the Center for Competitive Politics (a 501(c)(3) that works on election law). Pursuant to 42 U.S.C. § 1983, the Center sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of its “significant donors.”

A panel of the Court of Appeals for the Ninth Circuit rejected the Center’s claims that such compelled disclosure violated its First Amendment associational rights.

Today the Supreme Court denied the Center’s petition for a writ of certiorari, which had been filed by the Center’s legal director Allen Dickerson.

Amicus briefs in support of the Petitioner were filed by the Cato Institute (Ilya Shapiro), American TargetAdvertising, Inc. and 57 Nonprofit and Other Organizations (Mark Fitzgibbons), Institute for Justice (Diana K. Simpson), Pacific Legal Foundation (Timothy Sandefur), Center for Constitutional Jurisprudence (John. C. Eastman), The Philanthropy Roundtable (Allyson N. Ho), and the States of Arizona, Michigan, and South Carolina (John R. Lopez, IV).


  1. George Will, “The Supreme Court’s opportunity to tackle sinister trends,” Washington Post, November 4, 2015 (urging review)
  2. Editorial, “Show Us Your Donors,” Wall Street Journal, November 4, 2015 (urging review)
  3. Lyle Denniston, “Group seeks privacy for donor list,” SCOTUSblog, May 15, 2015
  4. Edward Pettersson, “Koch Group Gets to Keep Donors Secret in California Lawsuit,” Bloomberg Business, February 17, 2015 (discussing District Court ruling by Judge Manuel Real in favor of Petitioners).

FAN 83.1 (First Amendment News) Momentum Builds in Right of Publicity Case — Volokh & Rothman File Amicus Brief Urging Review

Professor Jennifer Rothman

Professor Jennifer Rothman

The momentum is building in Electronic Arts, Inc. v. Davis, the Right of Publicity case in which Paul M. Smith recently filed a cert. petition. In what may be shaping out to be the most important First Amendment case of this Term, Smith has just received some impressive support by way of an amicus brief to be filed later today by UCLA Law Professor Eugene Volokh and Loyola, Los Angeles, Law Professor Jennifer Rothman. Twenty-nine noted scholars signed onto their brief (see listing below).

If ever there was cert-worthy case — a case in which the cert. stars seem to be aligning — the EAI case is the one. The circuit and state courts are all over the conceptual map with assorted and conflicting tests being used in the SecondThirdFifthSixthEightNinthTenth, and Eleventh Circuits and in the FloridaKentucky, and Missouri Supreme Courts. Confusion abounds, and this as asserted First Amendment rights twist in the varying doctrinal winds.

Enter Volokh and Rothman, two scholars quite familiar with this intersection of tort law and the First Amendment.  Here is how they open their brief: “The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other ‘attributes’ ‘of identity.’ The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.” (notes omitted)

“Unfortunately,” they add, “there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving com- mercial advertising, which is less constitutionally protected than other speech). Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.” (note omitted)

Professor Eugene Volokh (credit: UCLA Magazine)

Professor Eugene Volokh (credit: UCLA Magazine)

Because of the confusion in the lower courts, Volokh and Rothman argue that this “state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred.”

The rulings in Davis v. Electronic Arts, Inc. (9th Cir. 2015) and Keller v. Electronic Arts, Inc. (9th Cir. 2013), they stress, “also treat the First Amendment defense to the right of publicity as weaker than the First Amendment defense to trade- mark law. This too merits this Court’s review.”

Below is the list of scholars who signed onto the amicus brief:

  1. Jack Balkin
  2. Barton Beebe
  3. Erwin Chemerinsky
  4. Stacey L. Dogan
  5. Jay Dougherty
  6. Gregory Dolin
  7. Eric M. Freedman
  8. William K. Ford
  9. Brian L. Frye
  10. William T. Gallagher
  11. Rick Garnett
  12. Jon M. Garon
  13. Jim Gibson
  14. Eric Goldman
  15. Stacey M. Lantagne
  16. Mark A. Lemley
  17. Raizel Liebler
  18. Barry P. McDonald
  19. Tyler Ochoa
  20. Aaron Perzanowski
  21. Lisa P. Ramsey
  22. Kal Raustiala
  23. Martin H. Redish
  24. Betsy Rosenblatt
  25. Steven H. Shiffrin
  26. Christopher Jon Sprigman
  27. Geoffrey R. Stone
  28. Rebecca Tushnet
  29. David Welkowitz

FAN 83 (First Amendment News) Paul Smith Files Cert. Petition in Right of Publicity Case

It would be dangerous for persons trained only in the law to constitute themselves the final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. — Justice HolmesBleistein v. Donaldson Lithographing Co. (1903)

If there is a legal principle that unites these rulings [concerning the right of publicity], it is hard to discern. — Adam Liptak (2013)

 Paul M. Smith: Most people know him as the man who successfully argued Lawrence v. Texas (2003), which overruled Bowers v. HardwickIn the First Amendment world he is known as the lawyer who successfully argued Brown v. Entertainment Merchants Association (2011). There is, of course, more to the vita of Mr. Smith, the man at Jenner & Block who chairs the Appellate and Supreme Court Practice there, and co-chairs the Media and First Amendment, and Election Law and Redistricting Practices. So you get the idea — he’s a seasoned and highly skilled appellate lawyer.

Paul M. Smith

Paul M. Smith

In case you missed it, Mr. Smith’s latest case is Electronic Arts, Inc. v. Davis, in which he filed a cert petition in the Supreme Court last September. The issue in the case is “whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The controversy stemmed from the depiction of  former NF players in the “Madden NFL” video game franchise.

9th Circuit Ruling: In an opinion by Judge Raymond Fisher writing for a three-judge panel, the Ninth Circuit denied the First Amendment claim. “EA has not shown,” wrote Judge Fisher, “that its unauthorized use of former players’ likenesses in the Madden NFL video game series qualifies for First Amendment protection under the transformative use defense, the public interest defense, the Rogers test or the incidental use defense. Accordingly, we affirm the district court’s denial of EA’s motion to strike.”

The Cert Petition 

“This case involves the collision of the First Amendment and the state-law ‘right-of-publicity’ tort, an issue that has engendered conflict and disarray among the lower courts to the detriment of free expression. The right of publicity is a modern tort, first recognized in 1953” in the case of Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Thus does Mr. Smith begin his brief and his discussion of the “modern tort” that gave rise to the First Amendment defenses raised in EAI. 

 Conflict in the Circuits

The Supreme Court has not addressed the question, and decisions from the lower courts are a conflicting mix of balancing tests and frameworks borrowed from other areas of free-speech doctrine. — Judge Diane Sykes (2014)

As argued in the Petitioner’s cert. petition, the Supreme Court’s “only contribution came nearly forty years ago in Zacchini v. Scripps-Howard Broadcasting Co., (1977), in which the Court held [by a 5-4 vote] that the First Amendment did not bar a right-of-publicity claim against a television station that broadcast an entertainer’s entire human-cannonball act. . . . Thus, Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full.” On that score, and as discussed by Mr. Smith, there is a conflict among the lower courts as how to analyze such cases.

“The lower courts’ various and conflicting constitutional tests,” Smith maintains, “have resulted in numerous irreconcilable outcomes.” For example, in his brief he identifies the following conflicts:

  1. Transformative-Use Test: Used by the Third and Ninth Circuits.
  2. Rejection of Transformation-Use Test: The Second, Fifth, Sixth, and Eleventh Circuits, along with the Florida and Kentucky Supreme Courts, have “held that the First Amendment protects non-commercial speech depicting well-known people even if the depiction is not transformed.” (See below re Rogers test).
  3. Case-Specific Balancing Test: Used by the Eight and Tenth Circuits.
  4. Predominate Purpose Test: Used by the Missouri Supreme Court.

Suggested Approach

The test used in Rogers v. Grimaldi (2nd Cir., 1989), Smith argues, “allows the right-of-publicity tort only when the speaker has used a depiction of, or reference to, a celebrity to sell something — either by falsely claiming a celebrity commercial endorsement or by including a celebrity image in a publication gratuitously, just to attract attention. Confined to these circumstances, the right of publicity does not raise constitutional concerns. Speech that falsely claims a commercial endorsement is akin to the category of fraudulent speech that the government has long regulated without any First Amendment concerns. And the gratuitous use of a celebrity’s image to attract attention, unrelated to any expressive content in the work, likewise falls outside First Amendment protection altogether. Thus confined, the right-of- publicity tort raises little constitutional concern.”

The brief closes with this admonition: “Unless and until this Court intervenes, a great deal of valuable and protected expression will be chilled.”

Related Articles, Events & Blogs

 → Rebecca Tushnet, “A Mask that Eats into the Face: Images and the Right of Publicity,” Columbia Journal of Law & the Arts (2015)

 Eugene Volokh,” Freedom of Speech and theRight of Publicity,” 40 Houston Law Review 903 (2003)

 Rothman’s Roadmap to the Right of Publicity: a 50-state interactive survey of right of publicity laws, plus breaking news.

→ On October 17, 2015, the Abrams Institute hosted a workshop entitled “Right of Publicity: Closed Workshop.” Participatants included Floyd Abrams, Paul M. Smith, Rebecca Tushnet, Jennifer Rothman, Mark Lemley, Jack M. Balkin, Bruce Keller, Stacey Dogan, and Lee Levine.  The following issues were addressed:

  1. Current state of right of publicity law;
  2. Introduction to the current relationship of right of publicity to copyright, trademark and privacy principles;
  3. First Amendment theories relevant to thinking about right of publicity;
  4. The nature of the “right”;
  5. How is the “right” to be reconciled with the First Amendment?;
  6. Relationship to Copyright law; Relationship to Trademark law; and
  7. Practical issues

11th Circuit finds Georgia State psychologists have no First Amendment right to complain Read More


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

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

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

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

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

Dean Rod Smolla

Dean Rod Smolla

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

In response, Smolla & Abrams offer four main arguments:

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

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

Related Stories 

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

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

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

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

Begging & the First Amendment

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

Matt Segal
© 2011 Marilyn Humphries

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

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

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

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

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

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

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

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

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

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