Category: Supreme Court

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Staying Alive

I’ve made a related point before, but I think it’s misguided for the Court to issue a stay on an issue as important as the regulations to implement the climate change agreement without an explanation.

While the Justices cannot be expected to write on every motion that comes before them, on matters on great importance they should not hide behind the fig leaf that a stay is not a decision on the merits and thus requires no opinion. The four dissenters on the climate change stay are equally in the wrong–they should also have explained their reasons or contested what the majority did.

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FAN 97 (First Amendment News) Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?

The ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

                                 — Wendy Kaminer (Feb. 8, 2016)

It is that time of year again when those of us who have supported and continue to support the American Civil Liberties Union get out our checkbooks. Why? Because this is the time when we receive an annual fundraising letter from the group’s Executive Director. The letter is accompanied by an annual National ACLU Workplan. The latter “lays out [the ACLU’s] plans for the year ahead [and] always addresses the most critical civil liberties challenges facing our country” (emphasis added).

So begins a January 29, 2016 fundraising letter for Anthony D. Romero. Surprisingly, protecting free-speech freedoms is not listed as one of this year’s “critical civil liberties” issues. Neither of the documents contains any mention of the First Amendment.

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The 2016 letter and Workplan cover a “broad spectrum” of “wide-ranging assaults on liberty.” In that regard, five areas of government wrong doing are identified where “fundamental freedoms are on the line.” Free speech is not flagged as one of those endangered “fundamental freedoms.”

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Workplans, Priorities & Fundraising

Last year, when a similar omission in the ACLU’s 2015 Workplan (see FAN 49) was pointed out, Mr. Romero replied (see FAN 50) by noting the many areas in which both the national ACLU and its state affiliates continue to defend a variety of free-speech rights. Hence, the ACLU had not abandoned this field (see two news items below). Still, insofar as the workplans are any indication of the group’s priorities, protecting free speech does not appear to be one of them, at least not for fundraising purposes.

 Contrast Ohio 2016 Workplan (listing “protecting the right to dissent” as a top priority — “The ACLU of Ohio has a longstanding history of being the foremost guardian of the freedom of speech and assembly. Our work has never been more important as we are now preparing for the Republican National Convention.”)

Some Dissension in the ACLU ranks

Wendy Kaminer

Wendy Kaminer

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting  speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

Harvey Silverglate

Harvey Silverglate

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.  

Does the New ACLU Still Support the First Amendment Positions of the Old ACLU?  

Consider the following cases — would the national ACLU still defend the First Amendment claims it once defended in all of the cases listed below?

  1. Brandenburg v. Ohio (1969) (KKK hate speech) (Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton & Bernard A. Berkman)
  2. Buckley v. Valeo (1976) (campaign finance) (Joel M. Gora & Melvin Wulf)
  3. National Socialist Party of America v. Village of Skokie (1977) (Nazi hate speech)  (Burt Joseph in 7th Cir.)
  4. R.A.V. v. St. Paul (1992) (race hate speech) (Steven R. Shapiro, John A. Powell & Mark R. Anfinson)
  5. Lorillard Tobacco Company v. Reilly (2000) (tobacco advertising) (Steven R. Shapiro)
  6. Hill v. Colorado (2000) (abortion clinic protests) (Stephen R. Shapiro) {contrast ACLU amicus brief filed in McCullen v. Coakley (2014) (Steven R. Shapiro)}
  7. Citizens United v. FEC (2010) (campaign finance) (Steven R. Shapiro)

The 2014 & 2015 Terms: The ACLU & First Amendment Free-Expression Cases 

 In the 2015-2016 Term, thus far the ACLU has not filed a brief in either of the two First Amendment cases concurrently under review by the Supreme Court — Heffernan v. City of Patterson and Friedrichs, et al. v. California Teachers Association, et al.

In the 2014-2015 Term, the ACLU did not file a brief in Reed v. Gilbert, though it did file briefs supporting the First Amendment free-expression claims in Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Williams-Yulee v. Florida Bar

Open Invitation to Reply 

As in the past, Mr. Romero is invited to reply, both to the Workplan issue and to the question concerning the ACLU’s continued commitment to protecting First Amendment rights in the seven cases listed above. Better still, and to reiterate my request from last year, I welcome the chance to do a Q & A with Mr. Romero on the ACLU and the First Amendment.

A Hyperlinked History of the Controversy:  ACLU & the First Amendment 

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What Citizens United Did & Did Not Do  Read More

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FAN 96 (First Amendment News) Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

Upcoming: FAC 7 (First Amendment Conversations) — Richard Hasen discusses his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016) . . . and more.  Stay tuned.

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Plaintiffs have a continuing right of access under the First Amendment . . . to view the bison culling activiies that occur on public land, including Yellowstone National Park. — Complaint in Ketcham v. U.S. National Park Service (Jan. 26, 2016)

Last week Jamie M. Woolsey, Professor Alan. K. Chen, and Stefanie Wilson filed a complaint in a Wyoming federal district court on “behalf of journalist Christopher Ketcham and wild bison advocate Stephany Seay, who are seeking access to Yellowstone Park’s controversial bison trapping operations that lead to the slaughter of hundreds of bison. The lawsuit argues that the First Amendment guarantees citizens and journalists reasonable, non-disruptive access to the publicly funded national park.”

This is how their complaint seeking injunctive and declaratory relief begins:

I love this land and the buffalo and will not part with it . . .  These soldiers cut down my timber, they kill my buffalo and when I see that, my heart feels like bursting. —  Satanta-Kiowa Chief

According to an Animal Legal Defense Fund press release, “the National Park Service is scheduled to capture and facilitate the killing of up to 900 bison inside Yellowstone Park starting on February 15, 2016. During the capture and kill operation, the Park Service closes parts of the park to public access. ‘It’s ironic that to benefit Montana ranchers grazing their cattle—an invasive species—Yellowstone Park has agreed to facilitate the capture and killing of 900 American bison, an iconic, native species,’ said law professor and ALDF attorney Justin Marceau. . . .”

bison2“‘If the First Amendment right of access is to mean anything,’ Marceau went on to say, ‘it means that citizens and journalists should have reasonable, non-disruptive access to their publicly-funded national park to observe and memorialize one of the most controversial uses of national park land imaginable.'”

“‘Denying access to the park during this controversial publicly-funded wildlife slaughter campaign is very similar to the intent of Ag-Gag laws,’ said ALDF Executive Director Stephen Wells. ‘Such laws ‘gag’ would-be whistleblowers, journalists and activists by making it illegal to record and disseminate photos or footage taken in agricultural operations. ALDF has successfully proven Ag-Gag laws are unconstitutional under the First Amendment and we are confident we will do the same in this case.’ . . .”

The complaint alleges that “from the late 1990s until 2006, Defendants regularly allowed the public and the media to view the herding, trapping, sorting, and shipping of bison from the catwalks over the pens withint the [National Park].”

Jamie Woolsey, lead counsel for Plaintiffs

Jamie Woolsey, lead counsel for Plaintiffs

According to an Associated Press story, “Yellowstone spokeswoman Sandra Snell-Dobert said the restrictions are meant to protect park workers and the public. Moving and sorting bison can be dangerous, particularly within the narrow confines of the corrals, Snell-Dobert said. The lawsuit says such safety claims are exaggerated and that access to the corrals was routinely allowed until 2006, with no reports of anyone being injured.”

“‘It’s about public safety, but also about trying to reduce stress on the animal,’ Snell-Dobert said in a statement, adding that a large exclusion zone is necessary so that bison will feel comfortable enough to wander toward capture pens as they graze.”

→ Nature World News reports that the “driving force behind the large-scale bison cull is to reduce potential conflicts between the park and Montana landowners, as bison often travel outside of the park for food during the winter. Unfortunately, the arrival of bison instills fear in landowners that the bison will transmit a highly-infectious disease known as brucellosis to their cattle – even though there have been no such recorded instances to date.”

→ Hearing: February 3, 2016, District Court in Casper, Wyoming before Judge Scott Skavdahl. Professor Alan Chen will argue on behalf of the Plaintiffs in support of their motion for a preliminary injunction.

→ Related item: Steven Schwinn, “Park Service Inauguration Regs Don’t Violate Free Speech,” Constitutional Law Prof Blog, Jan. 28, 2016

NY Post Attacks Commission’s Ethics Rule Read More

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FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

[T]he Central Hudson test is susceptible to a wide variety of interpretations . . . . Martin Redish (2001)

After a period of much controversy, the Court in 1980 in Central Hudson articulated a general test for determining the constitutionality of regulations of commercial speech. Although the test has subsequently been interpreted from radically different perspectives, and although it has been attacked by numerous Justices, it has nevertheless remained the dominant test. — Robert Post (2000)

Before Sorrell v. IMS Health Inc. (2011) and 44 Liquormart, Inc. v. Rhode Island (1996), there was Central Hudson Gas & Electric v. Public Service Commission (1980).

When it comes to commercial speech and the First Amendment, Central Hudson was the coin of the realm in its day. Recall, the vote was 8-1 with Justice Lewis Powell writing the majority opinion (joined by Justices Stewart, White, Marshall, and Chief Justice Burger), with separate concurrences by Justice Brennan, Blackmun, and Stevens. Justice William Rehnquist wrote a lone dissent.

David O. Stewart, former Powell law clerk

David O. Stewart

Recall as well that Telford Taylor (counsel for the prosecution at the Nuremberg Trials) argued the case on behalf of the Appellants and Burt Neuborne filed an amicus brief on behalf of the Long Island Lighting Co. supporting the Appellants.

Justice Powell was virtually silent during oral arguments. Justices Byron White, John Paul Stevens, Potter Stewart, William Rehnquist, and Harry Blackmun asked the lion’s share of the questions. Even so, the Chief Justice assigned the opinion to Justice Powell.

Central Hudson was the case where the famed four-prong test was announced. Recently, I had occasion to look through the Powell papers archived at the Washington and Lee School of Law library. In browsing through those papers, I came upon a batch of memos and draft opinions concerning the Central Hudson case.

Much to my surprise, a good friend of mine, David O. Stewart, played a major role as the law clerk responsible for drafting Justice Powell’s Central Hudson majority opinion. In that regard, I asked David if he would answer a few questions about the case and his involvement in it. He kindly agreed; his responses are set out below. Read More

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FAN 95 (First Amendment News) “Fifty Shades of Grey” too Blue for Idaho?

Coming tomorrow: FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

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new-scenes-from-fifty-shades-of-greyThe Associated Press reported that a “movie theater is suing the Idaho State Police for threatening to revoke the theater’s liquor license because it served alcohol while showing ‘Fifty Shades of Grey.'”

“Village Cinema in Meridian, just west of Boise, has a liquor license and lets people drink alcohol in a restaurant or while watching movies in a designated 21-and-older VIP area, The Idaho Statesman reported. But state law prohibits places that are licensed to serve alcohol from showing movies that depict sexual acts.”

“Idaho police say a waitress at the theater served beer and rum to two undercover detectives watching the risque ‘Fifty Shades’ in the VIP seating last February. . . .”

“Idaho State Police later told Meridian Cinemas that it served alcohol while showing “Fifty Shades” from Feb. 13 to 18 and on Feb. 26, and attempted to revoke the theater’s liquor license.”

Counsel for Plaintiff: Jeremy Chou

→ Plaintiff’s complaint here. Among other things, Plaintiff’s counsel relies on the following precedent:

The Court decided 44 Liquormart on May 13, 1996.  The incidents in question here occurred in 1997. Thus, at the time that the Officials warned the Center’s management that hosting LSO’s art exhibition might subject the Center to sanctions, it was clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment. Thus, LSO’s right was “clearly established.” — LSO, Ltd. v. Stroh (9th Cir., 2000)

Michael Deeds, “Idaho theater lawsuit should spank stupid alcohol law,” Idaho Stateman, Jan. 22, 2016

 Eugene Volokh, “Idaho trying to revoke theater’s liquor license for showing ‘Fifty Shades of Grey’,The Volokh Conspiracy, Jan. 26, 2016

Missouri State lawmakers consider mandatory First Amendment classes

This from ABC News: “JEFFERSON CITY, Mo. The House committee on higher education considered a bill in Jefferson City Tuesday morning that would boost First Amendment education for Missouri students.

If passed, the legislation would require all college students to take a freedom of speech course before receiving a diploma.

The bill’s sponsor, Rep. Dean Dohrman, says last year’s protests on the MU campus was the main influence for this proposed legislation. . . .” (see Associated Press story here)

See also: Erik Wemple, “Mizzou professor Melissa Click charged with third-degree assault in quad clash,” Washington Post, Jan. 25, 2016

→ Jim Suhr, “Mizzou Chancellor Says He’s Not Going To Rush To Fire Melissa Click,” Huffington Post, Jan. 26, 2016

Campus Free-Speech Watch Read More

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FAN 94.2 (First Amendment News) Buckley v. Valeo: 40th Anniversary — Cato & Center for Competitive Politics to Host Event

United States Supreme Court

BUCKLEY v. VALEO (1976)

No. 75-436

Argued: November 10, 1975    Decided: January 30, 1976

The event is titled “The Past and Future of Buckley v. Valeo” and is being presented by the Cato Institute and the Center for Competitive Politics. It will take place on Tuesday, January 26th at Hayek Auditorium at the Cato Institute in Washington, D.C. (1000 Massachusetts Ave, NW).

Should Buckley be considered a First Amendment failure? Or did it embrace inevitable compromises that were both worse and better than everyone desired? How does Buckley affect the law and American politics and campaigning today? Does the decision have a future?” Those and related questions will be discussed at the upcoming event.

Introduction (9:00 a.m.)

Bradley Smith, Center for Competitive Politics

The Impact of Buckley on Campaigns and Elections (9:15-10:15)

Jeffrey Milyo, University of Missouri
Jay Goodliffe, Brigham Young University
Interviewer: Wendy KaminerThe Atlantic

Why the Buckley Decision Matters (10:15-11:15)

Bradley Smith, Center for Competitive Politics
Floyd Abrams, Cahill Gordon & Reindel LLP
Interviewer: Matea GoldWashington Post

What is Living and What Is Dead in Buckley v. Valeo? (11:30-12:30) 

John Samples, Cato Institute
Jan Baran, Wiley Rein LLP
James Bopp, The Bopp Law Firm
Interviewer: David SavageLos Angeles Times

Lunch

To register to attend this event, click here and then submit the form on the page that opens, or e-mail events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by 9:00AM on Monday, January 25, 2016.

Audio of oral arguments in Buckley here.

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FAN 94.1 (First Amendment News) Tenured LSU Prof. Sues — University Claims Her Profanity Constituted Sexual Harassment

Update: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, the eleventh in FIRE’s undefeated national Stand Up For Speech Litigation Project.

The case is Buchanan v. Alexander (U.S. Dist. Ct., MD, LA). The action was brought yesterday in a federal district court in Louisiana. Here is how the complaint opens:

Plaintiff Teresa Buchanan, a tenured professor, was fired from Louisiana State University (“LSU”) in June 2015 on the asserted ground that her occasional use of profanity constituted “sexual harassment” under LSU policies. Despite the fact that Professor Buchanan had a distinguished record of scholarship after nineteen years at LSU and had recently been recommended for a promotion, and notwithstanding the fact that the language in question was integrated into her pedagogical approach and was not directed at – nor did it disparage – any student, LSU terminated her employment. It did so under LSU policies that define “sexual harassment” without regard for First Amendment protections governing free speech and academic freedom. LSU’s flawed policies mirror a “blueprint” for campus anti-harassment policies promulgated by the U.S. Departments of Education and Justice, which unlawfully equates all speech of a “sexual nature” with sexual harassment. Under this approach, speakers may be punished – up to and including expulsion or termination – if a listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably.

Prof. Teresa Buchanan

Prof. Teresa Buchanan

The complaint alleges that on December 20, 2013, Defendant notified Professor Buchanan that she would not be teaching in the spring semester due to complaints from students about “inappropriate comments” she allegedly made during instruction, and because a superintendent of schools for a parish where LSU placed student teachers had complained that Professor Buchanan had made “negative and inappropriate comments” about parish teachers and criticized the superintendent at a recent meeting. Andrew did not disclose the identities of the student complainants or the nature of their complaints.

In May of 2014 Plaintiff received a memorandum from one of the Defendants that in part stated: “Beyond your sexually oriented comments, your reported communication style with students, faculty, and outside administrators has been found to be inappropriate, as you often use profanity in your communication.”

→ LSU’s sexual harassment policy defines sexual harassment as “unwelcome verbal, visual, or physical behavior of a sexual nature.” It includes quid pro quo harassment and hostile environment harassment, which “has the purpose or effect of unreasonably interfering with an individual’s academic, work, team or organization performance or creating an intimidating, hostile or offensive working environment.”

→ Alleged Violation of the ADA: The May Memorandum also informed Plaintiff that the Office of Human Resource Management had determined that she had violated the Americans with Disabilities Act by disclosing a student’s medical condition to the student’s entire class. The Office inexplicably made this determination despite the fact that the student had herself referred to her condition in class on several occasions.

→ Objectionable Language: The so-called profanity included her use of the word  “pussy” in discussing with student teachers how parents might use the word and other profanity as part of their everyday language. Her objectionable language also included her joking about stereotypical lesbian clothing to demonstrate sexual stereotyping. Additionally, it was alleged that she sometimes used sexually explicit ‘jokes’ in her teaching methodologies.

Professor Buchanan was dismissed from LSU on June 19, 2015.

→ Causes of action alleged by Plaintiff are:

  1. An as-applied violation of her rights to free speech under the First and Fourteenth Amendments
  2. An as-applied violation of her due process rights under the Fourteenth Amendment
  3. A facial challenge of the school policies as violative of her  First and Fourteenth Amendments rights
  4. A request for declaratory and injunctive relief.

Counsel for the Plaintiff are: Robert Corn-Revere, Ronald London, and Lisa Zycherman

→ Professor Buchanan’s own account of her  case

→ LSU Response: Ernest G. Ballard 3rd, a spokesman for Louisiana State, told the Chronicle of Higher Education: “We take our responsibility to protect students from abusive behavior very seriously, and we will vigorously defend our students’ rights to a harassment-free educational environment.”

→ Related New Stories 

  1. Peter Schmidt, “Fired LSU Professor’s Lawsuit Challenges Federal Title IX Guidance,” Chronicle of Higher Education, Jan. 21, 2016
  2. Charles Lussier, “LSU professor fired for using salty language in classroom claims she’s ‘witch hunt’ victim, plans suit,” The Advocate, June 27, 2015
  3. Ryan Buxon, “Fired LSU Professor Teresa Buchanan Says She Still Doesn’t Know What She Did Wrong,” Huffington Post, July 8, 2015 (video interview with Professor Buchanan)
  4. Colleen Flaherty, “Fired for Being Profane,” Inside Higher Ed, (AAUP alleges violations of academic freedom, due process in new report about tenured professor who was terminated by Louisiana State U for using inappropriate language) (see also here)
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FAN 93 (First Amendment News) “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer

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

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

Steven Shiffrin

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

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

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

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

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

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

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

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

Shiffrin finds such First Amendment harms in the following areas:

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

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

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

Stay tuned — more to come in early summer.

Related Posts

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

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

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

Competition in the Marketplace of Ideas

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

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

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

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

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

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

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

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

Nathan Kellum is the counsel of record for the Petitioner.

Judge Jerome Holmes

Judge Jerome Holmes

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

Judge Carolyn McHugh

Judge Carolyn McHugh

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

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

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

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

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

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

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

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

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

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

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

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

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

Idaho A.G. to Appeal “Ag-Gag” Ruling

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

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

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

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

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

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

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

11th Circuit Strikes Down City Tattooing Law

& the words were made in flesh

& the words were made in flesh

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

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

. . . .

Judge Jill Pryor

Judge Jill Pryor

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

Judges Stanley Marcus and William Pryor joined the opinion.

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

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

Campus Free-Speech Watch

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

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

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

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

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

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

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

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

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

Forthcoming Scholarly Articles

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

Notable Blog Posts 

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

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

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

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

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

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

News, Op-eds & Blog Posts

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

The Court’s 2015-2016 First Amendment Docket

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

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

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

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

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

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

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

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

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

MonumentalMobile Monument to the First Amendment (Thomas Jefferson Center)

The First Amendment & The Best of 2015

Best Supreme Court opinion: Reed v. Town of Gilbert

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

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

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

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

Best First Amendment champions: Megan Kelly and Tim Tai

 Best group defending First Amendment rights: FIRE

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

 Best speech: Floyd Abrams, “Liberty is Liberty

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

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

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

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

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

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

→ FAN Posts for 2015 ←  Read More