Category: Supreme Court

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FAN 114 (First Amendment News) 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied

The big First Amendment news of the 2015 Term was the cases the Court declined to hear. But even in the one case the Justices actually decided (4-4 cases don’t count), they were of two minds. The result: no blockbuster opinion like last Term’s Reed  Town of Gilbert (2015).

The Court’s Schizophrenic Moment 

The only First Amendment expression case the Justices actually decided was a government employee case, Heffernan v. City of Paterson (7-2). But even there, Justice Stephen Breyer’s majority opinion was (if I may) rather schizophrenic. One the one hand, the Court ruled that “when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior.” On the other hand, the Court “assumed that Heffernan’s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards.”

Thus while Garcetti v. Ceballos (2006) remains the main law in the area of government-employee speech, a little wind has been taken from its sails.

  Abood Lives On 

The central issue in Friedrichs v. California Teachers Association was whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. After oral arguments, it looked like Abood was headed for the dead-precedents dumpster. Ever since Harris v. Quinn (2014), the conservative bloc of the Court seemed to be gunning for Abood.

Justice consider the rhetorical question Justice Antonin Scalia posed to Michael Carvin, counsel for Petitions: “Is ­­ is it okay to force somebody to contribute to a cause that he does believe in?” The drift of his other questions and comments moved along that conceptual track.

But Fate intervened, Justice Scalia died, and that left the Court divided 4-4, which affirmed the ruling of the Ninth Circuit in favor of the unions. Much as Heffernan saved Garretti, Friedrichs saved Abood. The rehearing petition was also denied. (See also Town of Mocksville v. Hunter, below.)

Some Important Cases — Cert. Denied 

Some big First Amendment issues came before the Court this Term, but alas, all were ducked and thus delegated to the dustbin of forgotten cases.  Just consider the following areas of the law:

  • Right of Publicity: “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.” Despite the splits in the circuits and the confusion in the lower courts, the Justices denied the petition in Electronic Arts, Inc. v. Davis Paul M. Smith was lead counsel for the Petitioner.
  • Deceptive & Misleading Ads: “Whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo.” POM Wonderful, LLC v. FTC Tom Goldstein was lead counsel for the Petitioner.
  • Student Speech: “Whether and to what extent public schools, consistent with the First Amendment, may discipline students for their off-campus speech.” Bell v. Itawamba County School Board Wilbur Colom was lead counsel for the Petitioner.
  • Government Employee Speech: “Whether the First Amendment protects police officers who report misconduct in their ranks to a law enforcement agency for investigation.” Town of Mocksville v. Hunter→ Philip M. Van Hoy was lead counsel for the Petitioners.
  • Occupational Speech: “Whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review.” Hines v. Alldredge. Jeffrey Rowes was lead counsel for the Petitioner.
  • Public Forum: “(1) Whether the Massachusetts Bay Transportation Authority (MBTA) created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same controversial subject matter as petitioners’ pro-Israel ad, and thus violated the First Amendment by rejecting petitioners’ ad based on its content; and (2) regardless of the nature of the forum, whether the MBTA’s rejection of petitioners’ advertisement based on an advertising guideline that prohibits ads considered by MBTA officials to be “demeaning and disparaging” was a viewpoint-based restriction of speech in violation of the First Amendment.” American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority→ Robert J. Muise was lead counsel for the Petitioners.
  • Charitable Fund Solicitations: “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 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.” Center for Competitive Politics v. Harris. → Allen Dickerson was lead counsel for the Petitioner.
  • 4 Campaign Finance Cases: [1] “Whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.” Justice v. Houseman Paul Avelar was lead counsel for Petitioners.
  • [2] Disclosure Requirements: “Does a state’s interest in “increas[ing] . . . information concerning those who support the candidates,” Buckley v. Valeo, permit it to condition a charity’s publication of a nonpartisan voter education guide, which lists all candidates equally and makes no endorsements, upon the immediate and public disclosure of the names and addresses of individuals making unrelated donations over the previous four years?”  Delaware Strong Families v. Denn (Justice Thomas dissented from the denial of cert. and issued an opinion, and Justice Alito would have granted the petition.  Allen Dickerson was lead counsel for the Petitioner.
  • [3] Whether Hawaii’s registration, recordkeeping, and and ongoing reporting requirements violate the First Amendment as interpreted in Citizens United v. FEC. Yamada v. Snipes James Bopp, Jr., was lead counsel for the Petitioners.
  • [4] “Whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.” Miller v. Federal Election Commission. Alan Morrison was lead counsel for the Petitioner.

Free Speech & College Campuses Read More

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FAN 113 (First Amendment News) “Abrams Court” Breaks with Tradition & Allows Cameras in Courtroom

 

June 15, 2016, Washington, D.C. It was a remarkable moment when the Abrams Court sat to hear the case of Pear v. United States. The two issues before the eight-member Court were:

1.) Does the All Writs Act empower a court to compel a third-party to design new software to provide the “reasonable technical assistance” contemplated by the Supreme Court in United States v. New York Telephone Company, 434 U.S. 159 (1977)?

2.) Does a court order requiring a technology company to develop software to overcome security measures and to authenticate the software to obtain access to private information violate the First Amendment?

Chief Justice Floyd Abrams

Chief Justice Floyd Abrams

Before oral arguments in the novel case began, however, Chief Justice Floyd Abrams (suited in his specially-designed robe) made the following announcement:

At the outset, I have an  announcement. As may be evident, this proceeding of this Court will be televised. This Court has long barred cameras from our courtroom  for publicly unstated and perhaps difficult to defend reasons.

At that point the Chief Justice paused and smiled, and then continued:

Whatever the wisdom of that decision in the past, we see no reason to do so today and a powerful basis to allow cameras today. This is an important case, one in which there is great and deserved public interest. Allowing the public to see this branch of government in this public phase of its work is undoubtedly in the public interest and we serve that interest by opening this Court to far greater public scrutiny.

The Chief Justice next turned to counsel and admonished them:

I am confident that counsel will comport themselves appropriately and have no doubt that members of this Court will do so. 

With that the video-recorded moot court event hosted by the Newseum Institute began. Noted First Amendment lawyers Robert Corn-Revere and Ronald G. London represented Pear, and argued that the United States was asking the fictional company to create an entirely new function in providing access to an iPhone, thus creating new literary work — which would be protected by the First Amendment. (See Petitioners’ brief here)

Former assistant U.S. Attorney Joseph DeMarco, and co-counsel Jeffrey Barnum, a legal scholar and lawyer specializing in criminal and First Amendment law, argued the government does have the authority to compel companies to assist in a criminal investigation, and that there was no First Amendment protection for the kind of work the government was seeking — providing access only to a phone, not to the data it contained — for this single phone only.  (See Respondent’s’ brief here)

R.I. Governor Veteos “Revenge Porn” Bill

First Amendment lawyers and advocates have expressed concerns that htis particular bill is overbroad and vague, and, if enacted, will turn Rhode Island into an outlier on the protection of free speech. — Gov. Gina Raimondo

Gov. Gina Raimondo

Gov. Gina Raimondo

According to WPRI-12 News, “Gov. Gina Raimondo has issued the first veto of her tenure, rejecting a proposed ban on so-called ‘revenge porn’ as unconstitutional due to First Amendment concerns, her office announced Tuesday.”

“The bill, which cleared the General Assembly last week, was backed by Attorney General Peter Kilmartin. Supporters said it was designed to punish individuals who distribute sexually explicit material without the consent of everyone involved.”

“But watchdog groups including the American Civil Liberties Union and the New England First Amendment Coalition had urged Raimondo to veto the bill, describing it as unconstitutional, and in the end the governor agreed.”

We do not have to choose between protecting privacy rights and respecting the principles of free speech. The right course of action is . . . [to] craft a more carefully worded law that specifically addresses the problem of revenge porn, without implicating other types of constitutionally protected speech. — Gov. Gina Raimondo

Full Text of Governor Raymond’s veto message here.

8th Circuit Orders New Trial in Jesse Ventura Defamation Case

Here are the key facts as described in Chief Judge William Riely’s majority opinion in Ventura v. Kyle (8th Cir., June 13, 2016):

Jesse Ventura

Jesse Ventura

“Before his death, Chris Kyle was a sniper for a United States Navy Sea, Air and Land (SEAL) team. He authored the book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History (American Sniper). In the book, Kyle described punching a ‘celebrity’ referred to as ‘Scruff Face’ who was making offensive remarks about the SEALs at a gathering following the funeral of a SEAL killed in combat. In interviews about the book, Kyle revealed ‘Scruff Face’ was James Janos, better known as Jesse Ventura. Ventura, who was at the bar but denied a fight occurred, sued Kyle in this diversity action under Minnesota law for defamation, misappropriation, and unjust enrichment, alleging Kyle fabricated the incident. The jury found in favor of Ventura on the defamation claim, awarding $500,000 in damages, and found in Kyle’s favor on the misappropriation claim. Serving in its advisory role as to the equitable unjust-enrichment claim, the jury recommended an award of approximately $1.35 million, which the district court adopted. Kyle appeals the district court’s denial of his motion for judgment as a matter of law or a new trial.”

The majority opinion (joined by Judge Bobby Shepherd) reversed the unjust-enrichment judgment and vacated and remanded the defamation judgment for a new trial.

Judge Lavenski Smith concurred in part and dissented in part: “I concur in the majority’s reversal of the unjust-enrichment judgment. However, I disagree with majority’s decision to vacate and remand the defamation judgment for a new trial because of references to insurance in trial testimony and closing argument.”

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

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

Court Dismisses Challenge to Met Depictions of Paintings of Jesus Read More

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FAN 112 (First Amendment News) Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet

Over at Balkanization, Harvard Law Professor Mark Tushnet has some provocative things to say about the rule of law and the First Amendment. His post came in response to a New York Times story by Adam Liptak entitled “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.

Here is what Professor Tushnet wrote:

Professor Mark Tushnet

Professor Mark Tushnet

“I feel compelled to note that — except for blatantly strategic reasons that I actually wouldn’t find compelling — I almost certainly wouldn’t endorse the view that Trump shows contempt for the rule of law and the First Amendment — not because I agree with his views, of course, but because ‘the rule of law’ and ‘the First Amendment’ are almost entirely without content, so that I don’t know how someone could show contempt to ‘them’ — if there’s no there there, I can’t see how you could be contemptuous of ‘it.'”

Then, by way of a parenthetical comment, he added:

“Of course the claim that there’s no there there is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable.”

Over at The Volokh Conspiracy, George Mason University Professor David Bernstein took exception: “I think that Donald Trump does show contempt for the rule of law and the First Amendment, which I believe have plenty of ‘content.’ In Trump’s case, I don’t think it’s a rejection of the concept of the rule of law as much as complete, willful ignorance of the principles underlying our legal system.”

Invitation: Given Professor Tushnet’s comment that his is a “fairly complicated argument not worth developing here,” I invite him to say a few more words about what he meant, and I will happily post them.

Elementary School Bans Trump Cap

Logan Autry

Logan Autry

Powers-Ginsburg Elementary School has barred Logan Autry, a nine-year student, from wearing a Donald Trump cap to school. As reported by  Sontaya Rose for ABC News, young Autry said: “The vice principal came up to me and told me to take my hat off because it brings negative attention from other students. And I said no a few times and then the principal told me again and I still said no and refused.”

“For three days straight,” wrote Rose, “the third grader wore the hat to class. But each day, more and more classmates began confronting him at recess. ‘I still want to keep my hat. It’s not the hat that draws attention, it’s just my personality that the other children do not like,’ said Autry.”

“Autry recently moved to Fresno from the foothills, he loves politics and American history. ‘He knows more than I do. He knows more about this election than I know, it’s kind of embarrassing. You know, like are you smarter than a third grader kinda thing. But he is just very adamant about his beliefs and his rights. He wants to be a politician that’s his goal,’ said Angela Hoffknecht, Logan’s guardian. . . .”

FIRE Podcast Interviews with Glenn Greenwald & David Baugh

Over at FIRE, the “So to Speak” podcast interviews continue. The first interview in the series was with Glenn Greenwald. Recall, Greenwald is best known as one of the journalists who coordinated the 2013 National Security Agency revelations made by whistleblower Edward Snowden.

The second podcast interview was with David Baugh, who was the ACLU lawyer who represented the petitioner in  Virginia v. Black(2003) — the cross-burning case.

Nico Perrino, Director of Communications for FIRE, conducted the interviews.

New Book on Free Speech & “Conservative Libertarianism”  Read More

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FAN 111 (First Amendment News) Flying Dog Brewery Launches First Amendment Society

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

Free beer was being served as the audience gathered yesterday for a press conference at the National Press Club in Washington, D.C. to hear Jim Caruso (CEO of Flying Dog Brewery), Alan Gura (a DC-based constitutional law litigator), and Erin Weston (senior Director of Communications for Flying Dog). The three were there to discuss their First Amendment victory in Flying Dog Brewery v. Michigan Control Commission (6th Cir., 2015). More importantly, they were there to formally launch a new free-speech initiative. Ms. Weston will oversee the initiative.

The “First Amendment Society” is a non-profit initiative started by Flying Dog. The seed money for the campaign came from the damages award the brewery received from its victory in the Sixth Circuit.

Dean Lucy Dalglish

Dean Lucy Dalglish

One component of the initiative will be a First Amendment scholarship program done in conjunction with the  Philip Merrill College of Journalism at the University of Maryland, of which Lucy Dalglish (former executive director of the Reporters Committee for Freedom of the Press) is dean. Dalglish was present at yesterday’s press conference

Another component of the initiative will involve a a partnership with a public library. Staring next week, the Frederick County Public Library will host a series of lectures focusing on banned books and the First Amendment. The first three of those events will be held at 6:00 p.m. on the following dates:

  1. June 8Garrett Epps will discuss Whitman’s Leaves of Grass
  2. July 13: Michelle Markey Butler  will discuss Harry Potter and the Sorcerer’s Stone
  3. August 10: Ronald Collins, “The Poem that Howled Against Censorship: The Story of the Attempt to Ban a Book of Poems”
L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

Moved to action by the Michigan Liquor Control Commission’s attempt to ban the company’s “Raging Bitch” beer from being sold within the state, Jim Caruso tagged the experience as “an outrageous violation of our First Amendment rights.” It was that experience that prompted him to launch the First Amendment Society. In the course of the press conference, Caruso was emphatic that “this is not a marketing tactic.” Alan Gura, the lawyer who successfully argued the case, echoed that point as he discussed the merits of the case and why it was important to litigate it.

Some of those present at the press conference were Robert Corn-Revere, Walter Olson, Nico PerrinoIlya Shapiro, and Bryan Thomas Hissing, Community Services Coordinator for the Frederick County Public Library

New Book on Child Pornography Law Read More

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FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

Civil liberties without Steve Shapiro is like the Rolling Stones without Jagger. — Kathleen Sullivan

Steve Shapiro

          Steven Shapiro

He is a giant in his world, the world of civil liberties. For some two decades he has been the man at the helm of defending freedom on various fronts ranging from free speech to NSA surveillance and more, much more. His journey began 40 years ago as a staff counsel to the New York Civil Liberties Union.

He is Steven R. Shapiro.

Sometime this fall Shapiro will step down as the Legal Director of the American Civil Liberties Union. He has long been the one ultimately responsible for the ACLU’s entire legal program. Equally significant, Shapiro has been most closely involved with the ACLU’s Supreme Court docket. Ever since 1987, he helped to shape, edit, and occasionally write every ACLU brief to the Supreme Court.

  • Law Clerk (1975-1976 ) Judge J. Edward Lumbard, Court of Appeals, Second Circuit
  • J.D. (1975), Harvard Law School, magna cum laude.
  • B.A. (1972), Columbia College

Since 1995 Shapiro has served as an adjunct professor at Columbia Law School, where he has taught “Civil Liberties & the Response to Terrorism,” and “Free Speech and the Internet.”

 Shapiro is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Steven Shapiro, “The Roberts Court and the Future of Civil Liberties,” Houston Law Center, April 20, 2012

Natalie Singer, “Freedom Fighter, A conversation with Steven R. Shapiro ’75

SCOTUSblog on Camera: Steven R. Shapiro (complete six-part series here)

The Measure of the Man: What Others Say

I invited a few of those who know Steve Shapiro and are familiar with his work to offer a few comments. Before proceeding to their full comments, I selected a set of words drawn from them that capture the measure of the man: Here are those seven words:

“thoughtful” 

“principled”

 “unflappable”

 “effective” 

“remarkable” 

“honest”

“extraordinary”

Nadine Strossen: “Steve Shapiro has been a supremely thoughtful, lucid, persuasive advocate of First Amendment rights and other civil liberties, both orally and in writing. Whether he is serving as Counsel of Record on a Supreme Court brief or giving a sound-bite for the national media, he always presents even the most complex, controversial positions clearly, colorfully, and compellingly.”

EVAN E. PARKER/ THE TIMES Steven Shapiro, legal director of the American Civil Liberties Union, speaks Thursday at Valparaiso University's School of Law about the legal aspects of the United States Patriot Act.

   [credit: Evan E. Parker/ The Times]

Robert Corn-Revere: “Through his long career in defending civil liberties, and First Amendment rights in particular, Steve Shapiro demonstrated that protecting individual rights often requires championing the right to express ideas you abhor, but that doing so is necessary to protect basic freedoms. For those of us who had the privilege of working with him, his principled advocacy will be greatly missed.”

Burt Neuborne: “Steve Shapiro set the standard for all once and future ACLU Legal Directors. I know because I didn’t reach his standard. Steve has a precise and uncannily quick analytic mind that breaks complex fact patterns down into controllable issues, together with a keen strategic sense that accurately separates a good academic argument from an argument having a chance in the real world. Couple Steve’s extraordinary legal ability with his careful approach to administration, unflappable good humor, patience, and deeply principled commitment to the ACLU, and you have the key to his enormous success. He leaves office with the respect and affection of hundreds of lawyers whose work he aided, and with the knowledge that he performed one of the nation’s most important legal tasks with brilliance and humanity.”

Erwin Chemerinsky: “Steve Shapiro has done a truly spectacular job as Legal Director of the ACLU. The ACLU legal staff has grown tremendously and likewise benefitted greatly under his leadership and has made a huge difference in so many areas of law. He has been especially effective in directing the ACLU’s presence in the Supreme Court.”

Kathleen Sullivan: “Over his remarkable tenure Steve’s energy, intellect, and suppleness enabled the ACLU to navigate profound changes in the landscape of security, privacy, and freedom. It has always been a joy to work with him.”

Paul M. Smith: “It has been my privilege and pleasure to work with Steve Shapiro on a large number of projects over the years. For a quarter century, he has been on the job at the ACLU displaying a breadth of knowledge and a depth of wisdom that has been extraordinary.”

Arthur Spitzer: “At a recent ACLU Nationwide Staff Conference where Steve Shapiro’s forthcoming retirement was announced, the event planners handed out cardboard fans that said, ‘We’re all fans of Steve.’ The humor may not have been brilliantly original, but I think no one disagreed with the sentiment. Steve is a terrific lawyer, often seeing the deep problems in a case before anyone else and then seeing the way around them. But I think his even greater value to the ACLU has been his ability to be an honest broker among all the competing viewpoints within the ACLU. As far as I’ve been able to perceive (although from afar, at the local affiliate in DC), everyone feels that Steve understands and appreciates his or her concerns, weighs them fairly, and takes them into account, even if not ultimately agreeing. That will be a hard act to follow.”

UnknownOne Measure of His Work: Free Expression Cases

Below is a list of all the free speech cases (not all First Amendment cases) in the Supreme Court where the ACLU filed or signed onto a brief in the last ten terms. The direct cases are marked by an asterisk; all the others are amicus briefs.

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:

____________

Court Denies Review in Sign Case Read More

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FAN 109 (First Amendment News) Abrams Institute to Host Event on Commercial Speech

abrams-logoOn Monday, June 13th (8:45 a.m. – 2:30 p.m.) the Floyd Abrams Institute for Freedom of Expression will host a major conference on the commercial speech doctrine. The event will take place in New York City.

Click here to register for the event.

This conference on the commercial speech doctrine will focus on its changing and varying definitions, the regulation and potential liabilities based upon it, and the potential impact of Sorrell and Reed, two Supreme Court decisions. The discussion will center on its impact on the content creation community, lawyer speech, food and drug and other areas of corporate speech

Interview: Who’s Afraid of Commercial Speech? — 26 Years Later

Ron Collins (Harold S. Shefelman Scholar, University of Washington, School of Law) will interview Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit). 

The Shifting Boundaries Between Commercial & Non-Commercial Speech

A look at the varying definitions of commercial speech, historical basis for the commercial speech doctrine, and the likely impact of the Supreme Court’s decisions in Sorrell vIMS Health, Inc. and Reed v. Town of Gilbert.

  • Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  • Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  • Tamara Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law
  • Martin Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law

Moderator:  Vince Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

Commercial Speech:  The Definition Matters

“Commercial speech” is a dividing line between free expression and potential multimillion dollar liabilities in many areas of law.  A specific look at that divide in attorney, trademark, corporate-financial, and food and drug commentary.

  • Steven G. Brody, Morgan, Lewis & Bockius LLP
  • Denise Esposito, Covington & Burling and Former Chief of Staff to the Commissioner of the U.S. Food and Drug Administration (FDA)
  • Joshua M. King, Chief Legal Officer, Avvo, Inc.
  • Rebecca Tushnet, Professor of Law, Georgetown Law School

Moderators:  Chris Beall, Levine Sullivan Koch & Schulz LLP and Bruce Johnson, Davis Wright Tremaine LLP

Brand Journalism, Sponsored Content and the First Amendment

Difficult issues involving rights of publicity, copyright fair use and consumer protection disclosures arise in the First Amendment No Man’s Land between obvious commercial advertising and editorial speech by traditional media.  This panel examines the disparate jumble of legal tests and standards that apply when brands sponsor, influence or author news stories, features or commentary on matters of public concern and considers whether they can be harmonized with evolving commercial speech doctrine.

  • Deirdre Sullivan, The New York Times Company
  • Rick Kurnit, Frankfurt Kurnit Klein + Selz PCMary K. Engle, Federal Trade Commission, Associate Director, Division of Advertising Practices
  • Allison Lucas, BuzzFeed, General Counsel

Moderator:   Scott Dailard, Cooley LLP

Strategic Issues:  What questions are we asking now? Where is the law going?

An all room discussion on the strategic issues that should be raised in litigation concerning commercial speech and the First Amendment.

Moderator:  Timothy L. Alger, Greenberg Traurig LLP

The conference is sponsored by: Avvo Inc., Cooley LLP, Davis Wright Tremaine LLP, Frankfurt Kurnit Klein & Selz PC, Greenberg Traurig LLP, and Levine Sullivan Koch & Schulz, LLP.

Latest First Amendment Salon: Stone & Posner

Judge Posner & Prof. Stone

Judge Richard Posner & Prof. Geoffrey Stone

Last Monday The First Amendment Salon went on the road again, this time to the University of Chicago Law School. (The first “on the road” salon was in Los Angeles with a dialogue between Erwin Chemerinsky and Eugene Volokh.)

Geoffrey Stone (who serves on the Salon’s advisory board) interviewed Judge Richard Posner. The topic: “The Centrality of the First Amendment.”

By all measures, it was a quite an evening as Stone engaged the dapper jurist, drawing him out time and again. The result: a rare display of candor on a variety of subjects ranging from the significance of the press clause to the display of confederate flags.

To invoke the words of their former boss, Justice William Brennan, the discussion was atypically uninhibited, surprisingly robust, and exceptionally wide open.

Speaking in measured tones sprinkled with occasional chuckles, Posner seldom held back as the turn of his mind ventured from one provocative thought to another — all manifested in words, no less. Stone asked him about everything from the Dennis v. U.S. ruling (correctly decided), to the Pentagon Papers Case (correctly decided), to the wisdom of extending First Amendment protection to Edward Snowden re the release of secret government documents (not much simpatico here).

Along the dialogic way Posner, ever the maverick, occasionally answered Stone’s questions with a question only to have the Chicago professor up the conversational ante to tease out this or that point.

When the time came for questions from the audiences in New York and Washington, D.C. (via teleconferencing), the tenor remained composed yet spirited as the Judge replied with singular frankness concerning topics such as

Sometimes the discussion veered onto other topics such as:

  • executive power in wartime (should be considerable with little or no interference from the courts)
  • the Second Amendment and the individual right to bear arms (critical) and
  • Justice Holmes’s general deference to the democratic process (fine except in cases like Abrams).

Among other things, Posner also leveled a hearty blow at Roger Taney, this for his 1861 opinion in Ex Parte Merryman in which the Chief Justice took constitutional exception to President Lincoln’s suspension of the writ of habeas corpus. Pure folly by Posner’s jurisprudential measure.

All in all, everyone remained relaxed even as eyebrows raised from time to time. It made for a memorable evening. There was, of course more, much more. But I’ll stop there for now.

$60 Million Initiative @ Columbia University: The Knight First Amendment Institute Read More

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More on Swing Justices

A couple of weeks ago I posted that we are probably reaching the end of Justice Kennedy’s reign as the “swing Justice,” and perhaps the end of any one member of the Court being that person.  I just wanted to follow-up with some additional thoughts.

The concept of a “swing Justice” appears to be a product of the twentieth century.  In the nineteenth century, there were times where a particular Justice was a leader of the Court (think John Marshall), but that was different from saying that this person was the median vote. Owen Roberts was the first swing Justice in the modern sense (from 1932 to 1937), but the first one who was given that title was Byron White, in a 1972 New York Times profile. After that the term became a lot more popular.  Why I’m not sure.

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FAN 108 (First Amendment News) Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play

It is rare for the Senate to reject a Supreme Court nominee — the last time it did so was in 1987, when it voted against Robert H. Bork after an ugly political battle. . . . No president in at least the past century has had a Supreme Court nominee go unconfirmed on the grounds that it was an election year, according to ScotusblogEmmarie Huetteman

While the war of Citizens United and campaign financing rages on, Democrat and Republican groups are busy tapping into their financial war chests to contest key Senate races, which could determine the makeup of the Senate and the confirmation process as it applies to nominees to the Supreme Court . . . and that could shape the future of the First Amendment.

Writing in Politico, Burgess Evertt pointed out that “Democrats are getting badly outspent by their conservative rivals in the war over Merrick Garland’s confirmation, suggesting that President Barack Obama’s closest allies in the Supreme Court battle have more bark than bite.”

“The Constitutional Responsibility Project — which is taking the lead in the Democratic PR push over the court — has spent about $150,000 on two ads knocking Sens. Rob Portman of Ohio and Pat Toomey of Pennsylvania for stonewalling Garland’s nomination, according to two media tracking sources. That’s a pittance compared to the conservative Judicial Crisis Network, which has already spent $4.5 million to bolster vulnerable Republicans and attack moderate Democrats for urging action on Garland. . . .”

Everett also noted that “other groups aligned with the left are making seven-figure ad buys: End Citizens United hit GOP senators in New Hampshire, Iowa and Missouri with $1.2 million in ads, and Senate Majority PAC spent $1 million on Supreme Court ads targeting GOP Sen. Kelly Ayotte in New Hampshire. Planned Parenthood has spent $400,000 to animate voters on the Garland issue, and a number of smaller digital ad buys, led by Majority Forward, are hitting Republicans on the matter. . . .”

Meanwhile, back on the Hill, Chief Judge Merrick Garland is making the rounds (limited as they are) to any senator who will agree to see him (46 to date, 14 of them Republicans).

∇ ∇ ∇ 

Below is a list of the Court’s 5-4 First Amendment free expression rulings in which Justice Antonin Scalia was in the majority:

  1. Garcetti v. Ceballos (2006)
  2. E.C. v. Wisconsin Right to Life, Inc. (2007)
  3. Morse et al. v. Frederick (2007)
  4. Davis v. Federal Election Commission (2008)
  5. Citizens United v. Federal Election Commission (2010)
  6. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
  7. Harris v. Quinn (2014)
  8. McCutcheon v. Federal Election Commission (2014)

Bravin On Garland’s Nomination Questionnaire

Jess Bravin (credit: NYT)

Jess Bravin (credit: NYT)

Wall Street Journal Supreme Court correspondent Jess Bravin just posted a piece on the 141-page questionnaire Chief Judge Merrick Garland submitted to the Senate Judiciary Committee yesterday. The questionnaire, he wrote, “offers a sliver of Judge Garland’s views by asking him to describe his 10 most significant judicial opinions, as well as the 10 most significant matters he handled as a trial or appellate attorney. . . .  At the top of his list of significant opinions Judge Garland listed a 2015 opinion that expanded the definition of the press beyond conventional news organizations to account for new, Internet-fueled forms of media.”

“Another FOIA case,” Bravin added, “made Judge Garland’s list: his 2013 opinion requiring the Central Intelligence Agency to respond to a request related to drone strikes filed by the American Civil Liberties Union. The CIA had refused to acknowledge whether it held any such records; Judge Garland found such a position untenable, as the president had publicly acknowledged the drone program.”

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

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FAN 107.2 (First Amendment Law) Hasen on the Next Big Campaign Finance Case

James Bopp, Jr.

James Bopp, Jr.

The case is Republican Party of Louisiana, et al. v. FECAs noted on the Federal Election Commission’s website: “On August 3, 2015, the Republican Party of Louisiana, the Jefferson Parish Republican Parish Executive Committee and the Orleans Parish Republican Executive Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of portions of the Federal Election Campaign Act that specify how state and local parties must finance and disclose certain ‘federal election activity’ that they plan to engage in, including fundraising costs for such activity. They argue that the provisions are unconstitutional under the First Amendment because they burden the plaintifffs’ ‘core political speech and association’ and that there is no sufficiently ‘cognizable’ governmental interest justifying the challenged provisions.”

Prof. Richard Hasen

Prof. Richard Hasen

The case is now before a three-judge court with James Bopp arguing on behalf of the Republican Party of Louisiana. Recall that Mr. Bopp was the one who played a major role in orchestrating the litigation around such campaign finance cases as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014).

As Professor Richard Hasen sees it, the Republican Party of Louisiana case could prove to be a major moment in the ongoing battle over campaign finance laws and the First Amendment. Writing in The Atlantic, Professor Hasen notes:

“The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.”

“If the Supreme Court still has a vacancy when the soft-money case arrives,” adds Hasen, “that means the lower-court ruling could stand on a 4-4 split. But even if that happens, there will be other cases waiting in the wings. Eventually, when the Court has its full complement of justices, it will face a fundamental decision: Should it embrace the vision of Justice Scalia, in which the Court holds that the First Amendment does not allow meaningful limits on money in politics?”

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FAN 107 (First Amendment News) FTC’s Power to curb misleading ads remains intact

After a lengthy hearing (involving 14 expert witnesses and nearly 2000 exhibits), an administrative law judge (ALJ) concluded that petitioners had violated the FTC Act. . . . On de novo review, the Commission found that petitioners had violated the FTC Act by using misleading, unsubstantiated ads to market their products. . . . .[T]he FTC factual findings at issue in this case are entitled to judicial deference under the substantial-evidence standard. Government brief in POM Wonderful

This past Monday the Court denied cert in POM Wonderful, LLC v. FTCa commercial speech case. It was the 14th First Amendment free-speech case the Justices denied review in this Term (see below). The issue in the case was whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo.

The U.S. Court of Appeals for the D.C. circuit ruled in favor of the Federal Trade Commission in an opinion by Judge Sri Srinivasan joined in by Chief Judge Merrick Garland and Senior Circuit Judge Douglas H. Ginsburg.

→ Tom Goldstein — who successfully Sorrell v. IMS Health, Inc. (2011) — was the counsel of record on the cert petition filed on behalf of POM Wonderful. In his brief Mr. Goldtstein argued:

The Federal Trade Commission (FTC) deemed several of petitioners’ advertisements unprotected by the First Amendment and banned them on the theory that their truthful content nonetheless implied a false or misleading message to a “significant minority” of consumers. Petitioners challenged that ban under the First Amendment. The Court of Appeals upheld the ban in its entirety because—applying only generic principles of administrative law—it gave great deference to the FTC’s determination that all of the challenged ads implied the alleged false or misleading messages and for that reason received no First Amendment protection.

The Cato Institute filed an amicus brief supporting the Petitioner.  In it, Cato’s lawyers argued:

This case raises the issue of whether the U.S. Courts of Appeals should defer broadly to Federal Trade Commission (“FTC”) adjudicative factual and legal findings when the agency’s order restrains commercial speech. The Court has not addressed that issue in 50 years. See F.T.C. v. Colgate-Palmolive Co. (1965). Since 1965, the deference accorded the FTC’s factual and legal findings in every administrative deceptive advertising case has effec- tively transformed the agency into a court of last resort despite the fact that all FTC deceptive adver- tising decisions necessarily involve limitations on prospective commercial speech and, thus, raise First Amendment issues, and despite the fact that in administrative cases the FTC not only initiates prose- cutions but also serves as the ultimate judge, an inherent conflict of interest.

All of those claims fell to the wayside when the Court denied cert. in the case earlier this week. Instead, the Court let stand the position argued for by the government in its reply brief in POM: “the court of appeals’ holding that substantial-evidence review applies in this context is correct and does not conflict with any decision of this Court or of another circuit or a state court of last resort.”

That said, the FTC’s powers to regulate misleading ads remained intact and the Commercial Speech doctrine likewise remained as it is.

By bringing [this] case [up for review] POM [put] all of its cards on the table. But other food and supplement advertisers will have to live with the results.Bruce Silverglade (counsel for Olsson Frank Weeda Terman Matz)

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