Category: Supreme Court

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FAN 102.1 (First Amendment News) Laurence Tribe Petitions Court in Defamation Case

The case is Scholz v. DelpThe issue raised in it is whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action. The state court judgment below was in favor the First Amendment claim.

Harvard Law Professor Laurence Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe begins his brief my stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

Professor Laurence Tribe

Professor Laurence Tribe

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

The the three arguments advanced by Professor Tribe in his cert. petition are:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closes his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

 Response due April 4, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Justice v. Hosemann 
  3. Cressman v. Thompson
  4. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

→ The Court’s next Conference is on March 25, 2016.

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.

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Time For More Certiorari Grants

Though it may be impolitic to say, one result of Justice Scalia’s death is that the Justices will have much less work.  Today they issued their second one-sentence “affirmed by an equally divided Court” decision, and more are sure to follow.  Thus, I would guess that this Term will have the fewest number of opinions in many years.

This creates an opportunity.  Lawyers have long complained that the Justices take far too few cases in the less glamorous areas of law.  (bankruptcy, tax, ERISA, IP, administrative law, securities regulation etc.).  One explanation for that is that the Court has to reserve its docket for important constitutional cases.  For now, though, it’s fair to say that the Court will be unable to resolve most of those. While they may split in other sorts of cases (the first tie after Justice Scalia’s death involved a bankruptcy issue), that sort of deadlock is less likely.  I would therefore suggest that they lean forward in stocking their docket with these sorts of meat-and-potatoes matters for next Term, where there is high likelihood they will be without a ninth member for a significant period of time.

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One Way to Force a Senate Hearing on Judge Garland

Apologies for the light blogging of late.  I’m on sabbatical next semester, which means that in a few weeks I expect to be posting much more frequently (you decide whether that is exciting news or not).

With respect to the nomination of Judge Garland, I don’t expect much to happen until November.  I’m surprised, though, that the focus has been on how to bring public pressure on Senate Republicans (or just some of them) to hold a confirmation hearing.  I would think that the more effective strategy would be for Senate Democrats to start filibustering things that Republicans want until a hearing is granted.  Then again, these days Senate Democrats are probably feeling good about their chances of taking the Senate after Trump gets wiped out in the Fall, so why do anything that gets in the way of that?

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FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

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FAN 101.3 (First Amendment News) Supreme Court Denies Review in Right of Publicity Case

In its order list today, the Supreme Court denied review in Electronic Arts, Inc. v. Davis. The issue in the case was 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.

See FAN 83: “Paul Smith Files Cert. Petition in Right of Publicity Case” (Nov. 4, 2016)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 25, 2016.

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.

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FAN 101.2 (First Amendment News) Judge Garland on the First Amendment: Opinions & Votes   

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Here is an early snapshot of some of Chief Judge Merrick Garland’s opinions and votes in First Amendment free speech cases:

Ruggiero v. Federal Communications Commission (D.C. Cir., 2003, en banc) (joined majority opinion by C.J. Ginsburg denying First Amend. challenge to  restrictions on licenses for low-power radio stations) (separate concurrences by Randolf, J., and Rogers, J., and dissent by Tatel, J.)

— Initiative & Referendum Inst. v. U.S.P.S. (D.C. Cir., 2005) (Garland, J., for the Court) (sustaining First Amendment challenge of U.S. Postal regulation prohibiting solicitation of signatures outside post offices).

— Thompson v. District of Columbia (D.C., Cir., 2005) (Tatel, J., for majority joined by Garland, J., with Edwards, J., concurring) (reinstated plaintiff’s First Amend. claim that he was fired for exercising his free-speech rights) (NB: Judge Edwards’ concurrence: “given the posture of this case, it would appear that the disposition of the First Amendment claim may dispose of the entire case.”)

Lee v. Dep’t of Justice (D.C. Cir. 2005, en banc) (per curiam,  Garland, J., dissenting from the denial of rehearing en banc) (Garland: “The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement . . . that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.”)

— Boehner v. McDermott (D.C. Cir, 2007, en banc) (Randolph, J., majority, with Sentelle, J., dissenting joined by Garland, J. & others)

Commentary:

  • Reporters Committee (2015): (“In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.”

— National Association of Manufacturers v. Taylor (D.C. Cir., 2009) (Garland, J., unanimous: 3-0)

Commentary:

  • Richard Hasen, “Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness,” Election Law Blog, March 17, 2016 (The “NAM decision . . . carefully applies precedent, and is not reluctant to uphold disclosure requirements in the face of unsubstantiated claims of harassment. the judge also signed a 2008 decision, Shays v. FEC, which required the Federal Election Commission to craft tougher regulations to implement the campaign finance law.”)

— SpeechNow.org v. Federal Election Commission (D.C. Cir.,2010, en banc) (Sentelle, C.J., unanimous: 9-0)

(Oral arguments audio)

Commentaries:

  • HasenJudge Merrick Garland” (“my view is that a Justice Garland would be moderately liberal on election law issues, probably voting with the four more liberal Justices in most election cases.” . . . .”we should not read too much into Judge Garland’s vote in the SpeeechNow case, the case which established Super PACs. As I explained that unanimous ruling was compelled by the Supreme Court’s Citizens United decision.”)
  • Damon Root, “Merrick Garland on Citizens United, the First Amendment, and Campaign Finance Regulation” (“Notably, the D.C. Circuit rejected the FEC’s attempt to distinguish Citizens United, which struck down an expenditure limit, from the SpeechNow case, which dealt with a contribution limit. In other words, the D.C. Circuit had an opportunity to accept the federal government’s narrowing analysis of Citizens United and it rejected that narrowing analysis. Among the judges who joined the D.C. Circuit’s opinion in SpeechNow.org v. FEC was Merrick Garland, who is now President Obama’s nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.”)
  • John Light, “Merrick Garland Could Mean a New Chapter in the Fight to Reverse Citizens United,” Moyers & Co., March 16, 2016 (“Garland’s decision on SpeechNow does not necessarily indicate how he would vote on a case seeking to reverse Citizens United, should one reach the bench, reformers believe. “We personally think that there’s a lot of daylight between Citizens United and SpeechNow,” said Greytak. Stephen Spaulding, senior policy counsel and legal director at Common Cause, argued that Garland’s ruling could be explained by the fact that federal appeals court judges are bound by Supreme Court precedent. The year SpeechNow came before the DC Circuit, the justices already, through Citizens United, were sending a pretty clear message about how the high court felt about super PAC spending.”)

— American Meat Institute v. U.S. Department of Agriculture (D.C. Cir., 2010, en banc) (Williams, J., Garland, C.J., joining majority, Rogers, J., concurring in part, Kavanaugh, J., concurring in judgment, & Brown, J., dissenting) (Upholding over a First Amend, challenge Ag. Dept. rule requiring labels on meat to identify where the animal was born, raised and slaughtered)

→ (Oral arguments audio)

Commentary:

— POM Wonderful v. Federal Trade Commission (D.C. Cir., 2015) (per Srinivasan, J., unanimous: 3-0) (upholding FTC decision that the juice company made deceptive claims about its drinks’ health benefits)

→ (Oral arguments audio)

Commentaries:

  • Rich Samp, “The D.C. Circuit’s POM Wonderful Decision: Not So Wonderful for FTC’s Randomized Clinical Trial Push” (2015) (“the ruling is far from the sweeping endorsement of FTC advertising-control measures that the Commission might have been hoping for. In particular, the ruling provides little, if any, support for the FTC’s recent assertions that food and dietary supplement manufacturers are largely barred from including health-related claims on product labels unless their claims are supported by randomized and controlled human clinical trials (“RCTs”). To the contrary, the appeals court made clear medical studies that do not meet RCT standards may nonetheless have considerable value, and that the FTC’s regulation of advertising is subject to strict First Amendment limitations. The decision suggests that courts may be very reluctant to uphold the FTC’s application of RCT standards to claims that a product promotes general health and nutrition, as distinct from claims that a product is effective in preventing or curing specific diseases.”)

— Wagner v. Federal Election Commission (D.C. Cir., 2015) (Garland, J., unanimous: 3-0)

→ (Oral arguments audio)

Commentary: 

  • Hasen, “Judge Merrick Garland” (“the way that Judge Garland wrote the decision indicates that he accepts Congress’s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors.”)

Hasen on Garland & Citizens United:

“The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.” (Source: HasenJudge Merrick Garland“) 

Reporters Committee releases report on Judge Garland’s First Amendment and Freedom of Information decisions (2015)

 FAN 101.1:  “Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

See also Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUSblog, April 26, 2010

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Some Thoughts on the Garland Nomination

I interviewed for a clerkship with Judge Garland right after he was confirmed to the D.C. Circuit.  It was a disaster, but entirely because I was young and didn’t understand how to handle those sorts of situations.  He’s an excellent judge, though I don’t think that Senate Republicans will allow the nomination to go forward for now.

I want to make two observations about this choice.  One is that it shows how hard it is break the recent paradigm for Supreme Court Justices (someone from Yale or Harvard who served as a federal appellate judge).  Only Elena Kagan partially breaks with this template (she was not a judge) going all the way back to Sandra Day O’Connor.

The other is that I think this choice could pose a problem in the Fall.  Suppose that in October Senate Republicans look at the polls and conclude that Hillary will win and the Democrats will take back the Senate.  Or suppose it’s November and those things have happened.  At that point Garland will look a lot better than what’s behind Door #2.  If they try to confirm Judge Garland then, though, will Hillary or some Senate Democrats object and try to hold out for a different choice?  Would the nomination be renewed in January 2017 under those circumstances?

In the end, I wonder if Judge Garland will be another Al Gore.  You win the prize, but you don’t receive the prize.

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech Read More

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FAN 100 (First Amendment News) FIRE Spreads — Group to Launch Online First Amendment Library

UnknownThis post marks the 100th weekly issue of First Amendment News, which began on February 10, 2014. First and foremost, I want to thank our publisher, Dan Solove, who makes all this possible. Dan: it’s been a great ride, so thanks for all your encouragement. Next, I want to thank my FAN readers — liberals, conservatives, libertarians, and the politically & non-politically correct — for your input and continued support.

I try to be a fair broker in what I present and how I do so. Why? Because I  believe that diversity of views is a good thing, even if it includes diverse views about the meaning of the First Amendment itself. After all, to march in lockstep is to give up on the great free-speech experiment that is America’s unique gift to civilization. One more thing: If you agree, and if you also believe in this free-speech principle, it certainly helps to have an open mind.– RKLC

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UnknownToday, the Foundation for Individual Rights in Education (FIRE) announces a new project—the creation of an online First Amendment library, which will be free to all users. The first phase of the library is scheduled to launch this fall. I am honored to serve as the library’s editor-in-chief. The online library will include, among many other features:

  • A hyperlinked list of all First Amendment opinions handed down by the Supreme Court, with the text of cases hosted on FIRE’s own site,
  • An ever-growing list of historical and related secondary materials, and
  • Users will be able to browse cases by numerous and varied topical categories (e.g. commercial speech) and sub-categories (e.g, lawyer advertising), as well as Court era (e.g., Warren Court, Burger Court, Rehnquist Court & Roberts Court).
The online library will also include many links (organized topically) to federal campus free-speech cases, along with links to new and ongoing litigation.

In some respects, this Project pivots from one I created many years ago for the Newseum’s First Amendment Center, thanks to the energetic support of Paul McMasters and Ken Paulson. Unfortunately, times and people changed and with that the online library came down several years ago. Gladly, FIRE elected to create a new, improved, and expanded version of a First Amendment online library.

Our collective hope is that this First Amendment library will become a valuable, reliable, and resourceful asset to judges, lawyers, professors, and students along with anyone else interested in our First Amendment freedoms.

Greg Lukianoff, FIRE’s President & CEO, issued the following statement concerning the forthcoming library:

We at FIRE are very excited to work with Professor Collins in creating a new, free online First Amendment Library. Where we can take it and what we can do with it is almost limitless, but my grand hope is that it makes the great wisdom contained in First Amendment jurisprudence as accessible to high school students as it is to practicing lawyers. And most of all, we would like to thank the Stanton Foundation for the generous grant that made this new project possible.

 Internship Opening: FIRE will soon be looking for a legal intern to help curate and expand the site’s content. The internship will be open to rising second- and third-year law students, recent law school graduates, and specialists in First Amendment law. Other responsibilities will include helping compile First Amendment cases and other resources to create a model First Amendment course book. Go to FIRE website for more information.

More FIRE: Volokh Video 

(Credit: FIRE -- By Aaron Reese & Chris Maltby)

(Credit: FIRE — By Aaron Reese & Chris Maltby)

Check out this excellent 7:28 video clip of Professor Eugene Volokh speaking on free speech (excerpt below)

“Even you know you’re in the right, and you know you’re opponents are wrong, maybe not just wrong — maybe they genuinely are biogeted — sometimes the experience of talking to them, of debating this with them, will help you better understand you’re own position. . . .”

“Healthy debate at universities requires three things: First, it requires legal protection for speech. If the university can, for example, discipline students for expressing offensive views, that’s very dangerous to free-speech protections. Second, it requires a level of social tolerance. Let’s say, for example, that the university won’t discipline students for expressing certain views, but, say, if you oppose abortion rights, or if you oppose race-based affirmative action, or if you oppose same-sex marriage, and everyone calls you a racist, or sexist, or a bigot, and you start worrying that if even professor stay they’ll treat you fairly — maybe they’re not going to give you letters of recommendation or something like that — that’s also bad for public debate.  A third thing that healthy debate at universities requires is some amount of politeness. [If] people are constantly insulting each other, that’s bad for public debate, too.”

Yet More FIRE: Debate re “Hashtag Activism”

FIRE Debates Are Back! ‘Hashtag Activism’ to Take Center Stage at the University of Pennsylvania.

FIRE is has just announced that the third installment of the FIRE Debates series will take place at the University of Pennsylvania on Wednesday, March 23, at 7:00 p.m. Eastern in the Harrison Auditorium at the Penn Museum of Archaeology and Anthropology.

Debaters will argue the effectiveness of “hashtag activism.”

Go here for more information.

Court Denies Cert in Public Forum Case — Thomas & Alito Dissent  Read More