Tagged: Constitutional Law

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FAN 52 (First Amendment News) Corn-Revere signs with Cambridge to do Censorship Book

Bob Corn-Revere

Bob Corn-Revere

Noted First Amendment lawyer Robert Corn-Revere will soon rejoin the ranks of practicing free speech lawyers who have written books on the subject. The never-tiring lawyer has just signed a contract with Cambridge University Press to do a book entitled The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma.

The book will cover a variety of censorship-related topics — from the life and times of Anthony Comstock (1844-1915) to indecency regulations and campus speech codes and much more. The manuscript should be completed in a year or so.      

Anthony Comstock

Anthony Comstock

In 1999 Mr. Corn-Revere (a former legal advisor to an FCC Commissioner) co-authored Modern Communications Law (with Harvey Zuckman & Robert Frieden), and in 1997 edited Rationales & Rationalizations: Regulating the Electronic Media  (introduction by Senator Patrick Leahy).

In 2005 he prepared a report for the First Amendment Center entitled Implementing a Flag-Desecration Amendment to the U.S. Constitution

In 2003 he successfully petitioned the governor of New York to posthumously pardon the comedian Lenny Bruce (the first and only such pardon in the history of New York).

* * * *

Other practicing lawyers who have edited or authored books (other than casebooks) on free speech and related topics include:

  1. Floyd Abrams: Speaking Freely: Trials of the First Amendment (2005) & Friend of the Court: On the Front Lines with the First Amendment (2012)

    James Goodale

    James Goodale

  2. James C. Goodale: Fighting for the Press (2013), & Rob Frieden, All About Cable and Broadband (2014)
  3. Lee Levine (and Stephen Wermiel): The Progeny: Justice William Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014)
  4. Mike Goodwin: Cyber Rights: Defending Free speech in the Digital Age (2003)
  5. Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (2013), and Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth (2001), and Sex, Sin and Blasphemy: A Guide to America’s Censorship Wars (1993)
  6. Jonathan Emord, Freedom, Technology, and the First Amendment (1991) & Global Censorship of Health Information (2010)
  7. John F. Wirenius, First Amendment, First Principles: Verbal Acts & Freedom of Speech (2000)
  8. Edward J. Cleary: Beyond the Burning Cross: A Landmark Case of Race, Censorship, and the First Amendment (1995)

    Cameron DeVore

    Cameron DeVore

  9. Bruce Sanford: Sanford’s Synopsis of Libel and Privacy (1991) & Don’t Shoot the Messenger: How our Growing Hatred of the Media Threatens Free Speech for All of Us (1999) & The First Amendment Book (1991) (with Robert J. Wagman)
  10. Stephen Brody & Bruce Johnson: Advertising and Commercial Speech, A First Amendment Guide (2004-2014) (originally by P. Cameron DeVore and Robert Sack)
  11. Patrick M. Garry, Scrambling for Protection: The New Media and the First Amendment (1994)
  12. Robert Sack, Libel, Slander, and Related Problems (1997) (with Sandra S. Baron) (since revised while RS was a sitting judge)

    Martin Garbus

    Martin Garbus

  13. Martin Garbus: Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way (2010)
  14. David O. Stewart, Madison’s Gift: Five Partnerships That Built America (2015)
  15. William Bennet Turner: Figures of Speech: First Amendment Heroes and Villains (2011) (foreword by Anthony Lewis)
  16. Elliott C. Rothenberg, The Taming of the Press: Cohen v. Cowles Media Company (1999)
  17. Leon Friedman, editor, Obscenity: The Complete Oral Arguments before the Supreme Court in Major Obscenity Cases (1970)
  18. Richard Kuh: Foolish Figleaves: Pornography in and out of Court (1968)
  19. Albert B. Gerber, Sex, Pornography and Justice (1965)
  20. Elmer Gertz: Gertz v. Robert Welch, Inc: The Story of a Landmark Libel Case (1992) & Henry Miller Years of Trial and Triumph, 1962-1964: The Correspondence of Henry Miller and Elmer Gertz (editor, 1978)
  21. J.W. Ehrlich: Howl of the Censor (1961)
  22. Charles Rembar: The End of Obscenity(1968)

    Morris Ernst

    Morris Ernst

  23. Margaret C. Jasper, The Law of Obscenity and Pornography (2011)
  24. Morris L. Ernst, To the Pure: A Study of Obscenity and the Censor (1928), The First Freedom (1948), and Morris L. Ernst & Alan U. Schwartz: Censorship: The Search For The Obscene (1965)
  25. Lamar T. Beman, editor, Censorship of Speech and the Press (1930)
  26. Walter Nelles, editor, Espionage Act Cases with Certain Others on Related Points — New Law in Making As to Criminal Utterance in War-time (1918)
  27. Theodore Schroeder: Free Speech for Radicals (1916) (& various other books)
  28. Tunis Wortman, A Treatise Concerning Political Inquiry and the Liberty of the Press (1800)

Upcoming Memorial Service for Herald Price Fahringer 

A memorial service for Herald Price Fahringer (1927-2015), a criminal defense and free-speech lawyer, will be held on Saturday, March 28th at 2 p.m. at the Surrogate’s Court, 31 Chambers Street in Manhattan.

In lieu of flowers, donations may be made in his honor to the National Association of Criminal Defense Lawyers’ Foundation for Criminal Justice at:  http://nacdl.us/heraldpricefahringe.

Please contact erica.dubno@fahringerlaw.com if you have any questions.

Vintage Volokh — Professor Files Brief in 4th Circuit Government Employee Firing Case Read More

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Guest Contributor — Floyd Abrams, “Liberty is Liberty”

Floyd Abrams speaking at Temple Law School

Floyd Abrams speaking at Temple Law School

Following my post entitled “Floyd Abrams on ‘the greatest threats to free speech in this country,'” a number of readers asked where they might find the entire text of Mr. Abrams’ March 16, 2015 remarks at Temple University, Beasley School of Law (the Arlin & Neysa Adams Lecture).  

I contacted Mr. Abrams and he kindly agreed to let me post his lecture, the text of which is set out below. I have added hyperlinks to the text. — RKLC

___________________________________________________________________________________________________

A few weeks ago I read a blog post on Concurring Opinions. The post (entitled “First Amendment News”) is prepared weekly by Professor Ronald Collins and deals, in a particularly knowledgeable and even-handed manner, with the First Amendment in the courts, in legislatures, in academia, and elsewhere. In it, he summarized and attached a recent “workplan” of the American Civil Liberties Union. In eight pages, it listed nine priorities for the ACLU for 2015, ranging from reproductive rights (listed first) to mass incarcerations. Freedom of speech was not among the listed priorities and was referred to in only the most passing manner, an extraordinary omission for an organization formed for the prime purpose of defending that right and probably more associated with doing so than any other entity.

The ACLU later responded, pointing to a number of activities on its part aimed at protecting the First Amendment. Before it did so, however, another scholar — Professor Howard Wasserman — had responded to the blog with a provocative thesis. “One possible (if not entirely accurate) answer,” Professor Wasserman wrote of the ACLU’s omission, was this: “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.”

I have little doubt that Professor Wasserman didn’t mean to be taken too literally and I won’t seek to do so. But his observation did lead me to try to identify for myself what the greatest free speech civil liberties battles are today. Fortunately, we have no incidents such as in France of terrorists murdering journalists because they are offended by their offerings. Or, as in Russia, of journalists critical of the government being killed with disturbing and suspicious regularity. We have no examples of journalists being jailed, as in Turkey, because their writings outrage the regime in power. Or of direct governmental efforts to censor speech, as in India, by barring the televising of a documentary dealing with rape. Or of the Internet being censored, as in China, with the assistance of over two million people employed to monitor online conduct. Or of broadcasters being censored when they criticize the government, as in Venezuela. I could go on all too easily.

℘℘℘

So what is the greatest threat to free speech in this country? And where is it? There are obviously major issues relating to the potential impact of pervasive government surveillance on First Amendment freedoms. And those pesky issues relating to confidential sources of journalists — and as to who is a journalist — don’t seem to go away. And, of course, there are other issues.

Yet if I had to choose a topic and a locale, I think I would first look . . . right here. On this battleground. Oh, I don’t really mean here at Temple in particular. I don’t think I do, anyway.

The On-Campus Crisis 

But I do mean in colleges and universities, on campuses and in classrooms, by students and faculty and administrations. Around the country. This does not happen, as it might have many years ago when I was in college, simply because an all-powerful administration wanted complete control over all on-campus speech. (I well recall when, a few years ago, I entered Cornell that I was required to sign some document agreeing that I could be suspended for saying, doing or not doing just about anything of which the university disapproved, including not carrying the ID card they gave me saying just that.) Nor is it the result of pressure from powerful and wealthy alumni, a serious problem of the past.

If you’d like to see that sort of danger portrayed artistically, have a look at an old movie (even for me) called “The Male Animal” (1942), with Henry Fonda as a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted – very probably unjustly – of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views. And there have been a wide range of significant issues through the years.

Now, however, pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard. The amount of students who will not tolerate the expression of views with which they differ is less important than the sad reality that repetitive acts of speech suppression within and by our academic institutions persist and seem to grow in amount. And that is shameful.

What, after all, other than shame is deserved by Brandeis for offering and then withdrawing an honorary degree to Ayaan Hirsi Alia for her criticism of Islam; by the hostile atmosphere at Smith College that resulted in  Christine Lagarde’s withdrawal, the first woman to head the IMF, to speak to the graduating class; in Rutgers, for so embarrassing former Secretary of State Condoleezza Rice that she declined to appear. And for effectively withdrawing, George Will’s invitation to speak at Scripps College in California after controversy about the invitation.

And would you believe, as Chief Judge Loretta Preska of the United States District Court for the Southern District of New York pointed out in a recent address, that when the College Republicans at Fordham University invited Ann Coulter to speak on campus, “the uproar caused the group unceremoniously to rescind the invitation.”

One should really not have to say that of all places, campuses should be most protective of the broadest level of freedom of speech. Or that speakers should be permitted to have their say, instead of being booed off stage as former New York City Police Commissioner Ray Kelly was at Brown. Or shouted down, as Israeli officials have been, in threatening circumstances, and not permitted to speak on campuses. Or that it is disgraceful, as the findings of the Foundation for Individual Rights in Education (“FIRE”) reveal, that such topics as abortion, gay rights, and the “war on terror,” were “the cause of many disinvitation incidents,” that the amount of disinvitation incidents “has risen dramatically” over the past 15 years; and that Harvard – you’ve heard of Harvard, I’m sure – has the most disinvitation incidents. I don’t often quote William F. Buckley, Jr., but on hearing that, it’s hard not to recall his observation that “I’d rather be governed by the first 2000 people in the Boston telephone directory than the entire faculty at Harvard.”

What can one say about this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1858, “have every train of thought brought before us while we are young, and may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. It includes stifling speech itself. Wendy Kaminer, writing a few weeks ago in the Washington Post, described a recent panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive) figure by name — perhaps you can recall it — she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence.”

I don’t want to suggest that this is a problem limited to our country. Just as the First Amendment , which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer, in an article published in England just a month or so ago, reported on one English university in which (like here) the speech of a deputy ambassador of Israel had to be abandoned because of protests so noisy and threats of violence so credible that the safety of the speaker could not be guaranteed; of another that banned supposedly “racist” sombreros and native American dress; and of a third—one that you might have heard of called Oxford — where a debate on abortion was cancelled by College Censors (that’s their official name, by the way) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, appear to want to see and hear only views they already hold. Worse still, they want to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Oliver Wendell Holmes, to whom I referred earlier, long ago observed in one of his most famous opinions that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress,” we have seen time and again on campuses in our country speech stifled, speech condemned, and speech punished.

I was struck, in that respect, to read of the dispute on the U.C. Irvine campus earlier this month when the Associated Students of the University of California banned national flags from the lobby and offices of student government on the ground that “[t]he American flag has been flown in instances of colonialism and imperialism” and that they “not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments.” “Freedom of speech,” in certain spaces, the statement continued, can be interpreted as “hate speech.” The ban only lasted a few days before it was reversed, but what remains with me is not so much the degree of estrangement of the students involved from their country but that the students that supported it weren’t content with seeking to persuade others of their views but sought to impose their own by banning speech with they disagreed. It reminded me of the people who sought to criminalize the burning of the American flag. The First Amendment side of this issue is straightforward. Don’t ban the flag and don’t jail anyone who chooses to burn his or her own flag. That’s the way people who are devoted to freedom behave.

I do not mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Consider, as you may be already, the ugly racist chants of students at the University of Oklahoma. It is difficult to condemn, on any sort of moral basis, the decision of David Boren, the President of that University, to expel the students. In universities, as elsewhere, racism is not a blemish; it is a scar on everyone — those vilified, those uttering the ugly slogans of hate, and everyone else.  And if I were the president of a private university, that is not subject to the First Amendment, my initial instinct (but not ultimate decision) might well have been to expel the students. But because state universities are treated as instrumentalities of the state, the First Amendment applies to them, and the expulsion of the students was in all likelihood unconstitutional. That, as Professor Geoffrey Stone has summarized, is because “the central meaning of the First Amendment is that we do not trust the Government to decide for us what we should be allowed to hear, read, see or know.”

The Ideological Left’s Drift Away from the First Amendment  Read More

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FAN 51.5 (First Amendment News) Floyd Abrams on “the greatest threats to free speech in this country”

My First Amendment leads me to favor more speech, not less, on campus. And more speech, not less, in our elections. And more speech, not less, by corporations. And unions. And individuals. To me, then, the issue is not who benefits from reading the First Amendment broadly. It is that we all lose by reading it narrowly. Floyd Abrams, March 16, 2015

Floyd Abrams spoke at Temple University, Beasley School of Law, in Philadelphia yesterday to give the Arlin & Neysa Adams Lecture. In sometimes pointed, but always nuanced, remarks he singled out two great threats to free speech in modern America (see below).

In the course of his noontime remarks, Mr. Abrams took issue with

  • Professor Burt Neuborne (re “whether corporations are even in the First Amendment ballpark”), and with
  • Justice Stephen Breyer (re his defense of “collective speech” in his McCutcheon dissent), and with
  • Mr. Lincoln Caplan (re his belief that if corporations are protected by the First Amendment democracy will be imperiled).

Mr. Abrams’ remarks were prompted, in part, by a blog post by Professor Howard Wasserman, “Declaring Victory?PrawfsBlawg, Fe. 26, 2015 (re “There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech” — this in reference to the ACLU’s 2015 Workplan omitting any significant First Amendment agenda).

A few excerpts from the unpublished 4,300-word speech are set out below.

* * * * 

Greatest Threats to Free Speech 

Floyd Abrams speaking at Temple Law School

Floyd Abrams speaking at Temple Law School

1.  Suppression of Speech on College Campuses: Today, “pressures on freedom of expression, and all too often the actual suppression of free speech, come not from outside the academy but from within it.  And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard.”

2.  The Ideological Left’s Attacks on First Amendment Freedoms: “[I]t is the ideological Left that is increasingly less supportive of the First Amendment – or, to put it more fairly, [less supportive of] more speech or speech-like activity being protected by the First Amendment. . . .”

* * * * 

What the First Amendment is About

Protecting Democracy by Protecting Speech“Scholars, as well, who are willing to support the suppression of speech in the name of democracy are themselves missing the whole point of the First Amendment. . . . I think the First Amendment protects democracy by protecting speech and that when we suppress speech we imperil democracy. Period. So for me, when the conservative entity known as Citizens United produced and sought to put a nearly hour-long documentary-style denunciation of Hillary Clinton on pay-for-view when she was (or seemed to be) the leading Democratic candidate for President, it is obvious that it should be protected by the First Amendment. And to him and four members of the Supreme Court, because the money that was spent preparing the documentary came, in part, from corporate grants, that speech can be deemed criminal.”

The First Amendment is about Liberty: Those who suppress speech in the name of democracy conflate “what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. We might raise taxes, enact stricter antitrust laws, limit the size of corporations – choose your own. But what the First Amendment forbids the government from doing is abridging speech. The great English philosopher Isaiah Berlin put it this way:

Everything is what it is; liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.

“To which I add: the First Amendment is about liberty. We may and should take all appropriate steps to effectuate and protect other human values. But let’s not overcome or rewrite the First Amendment in doing so.”

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FAN 51.4 (First Amendment News) FCC Ruling: Broadband Internet Providers Have no First Amendment Rights re Access Services

On March 12, 2015, the Federal Communications Commission issued a 400-page ruling entitled “Report and Order on Remand, Declaratory Ruling, and Order.”

UnknownBy the Commission: Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel issuing separate statements; Commissioners Ajit Pai and Michael O’Rielly dissenting and issuing separate statements.

Here are a few First Amendment related excerpts from the FCC ruling and order:

  1. Benefit to Public: “Informed by the views of nearly 4 million commenters, our staff-led roundtables, numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.”
  2. Mere Transmission: “When engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as conduits for the speech of others. The manner in which broadband providers operate their networks does not rise to the level of speech protected by the First Amendment. As telecommunications services, broadband Internet access services, by definition, involve transmission of network users’ speech without change in form or content, so open Internet rules do not implicate providers’ free speech rights. And even if broadband providers were considered speakers with respect to these services, the rules we adopt today are tailored to an important government interest—protecting and promoting the open Internet and the virtuous cycle of broadband deployment—so as to ensure they would survive intermediate scrutiny.”
  3. No Speaker Status: “Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker—absent speech, such rights do not attach.”
  4. Limited to Access Services: “[T]he free speech interests we advance today do not inhere in broadband providers with respect to their provision of broadband Internet access services.”
  5. Cable Distinguished: “[B]broadband is not subject to the same limited carriage decisions that characterize cable systems—the Internet was designed as a decentralized ‘network of networks’ which is capable of delivering an unlimited variety of content, as chosen by the end user.”
  6. Content Neutral“Even if open Internet rules were construed to implicate broadband providers’ rights as speakers, our rules would not violate the First Amendment because they would be considered content-neutral regulations which easily satisfy intermediate scrutiny. In determining whether a regulation is content-based or content-neutral, the ‘principal inquiry . . . is whether the government adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.'”
  7. Narrowly Tailored: “[T]he rules here are sufficiently tailored to accomplish these government interests. The effect on speech imposed by these rules is minimal.
  8. Citizens United Distinguished: “Our rules governing the practices of broadband providers differ markedly from the statutory restrictions on political speech at issue in Citizens United. Our rules do not impact core political speech, where the ‘First Amendment has its fullest and most urgent application.’ By contrast, the open Internet rules apply only to the provision of broadband services in a commercial context, so reliance on the strict scrutiny standards applied in Citizens United is inapt.”
  9. Compelled Disclosure: “The disclosure requirements adopted as a part of our transparency rule also fall well within the confines of the First Amendment. . . . The Supreme Court has made plain in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio that the government has broad discretion in requiring the disclosure of information to prevent consumer deception and ensure complete information in the marketplace.”
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FAN 51.3 (First Amendment News) 8th Circuit Panel Strikes Down Missouri’s “House of Worship Protection Act”

The Case: Survivors Network of Those Abused by Priests, Inc. et al v. Joyce (8th Cir., March 9, 2015)

Judge Diana E. Murphy

Judge Diana E. Murphy

The Facts: “This action was brought by [the ACLU of Missouri on behalf of] two Missouri non profit organizations and two individuals who regularly gather outside Catholic churches to address sexual abuse by priests and other matters of public concern. Four parties, appellants here, have raised a facial First Amendment freedom of speech challenge to Missouri’s “House of Worship Protection Act.” The Act prohibits intentionally disturbing a ‘house of worship by using profane discourse, rude or indecent behavior . . . either within the house of worship or so near it as to disturb the order and solemnity of the worship services.’”

The Ruling: (Opinion per Judge Diana E. Murphy joined by Judges James B. Loken and Roger Leland Wollman)

  1. “The Act’s prohibition on profane discourse and rude or indecent behavior is content based.”
  2. “[T]he Worship Protection Act bans “profane” language and ‘rude or indecent behavior’ without defining these adjectives or what is meant by ‘unreasonably’ disrupting a house of worship.”
  3. “The Act bans the use of ‘profane discourse, rude or indecent behavior,’ meaning that a protester holding a sign considered profane or indecent outside a church is subject to penalties because of the content of her speech. Enforcement authorities must decide not only whether the speaker intentionally and unreasonably disturbs a house of worship, but also whether she uses profane or rude expression in doing so. Such distinctions based on the nature of the message conveyed make the Act content based.”
  4. “This Missouri statute cannot survive strict scrutiny since [the law] draws content based distinctions that are not necessary to achieve the state’s asserted interest in protecting the free exercise of religion.Since the Missouri House of Worship Protection Act violates the First Amendment, we reverse the judgment of the district court and remand for further proceedings . . . .”

As amici point out, critical portrayals of Muhammad outside a mosque or of the Pope outside a Catholic Church might well be considered profane or indecent by their audiences. Others may find language using the name of holy figures as swear words not only disrespectful, but profane as well. Similar expressions in the near vicinity of a house of worship have the potential to disturb or disquiet those present for worship. The meaning of “profane,” or irreverence to the sacred, is not a well defined legislative term familiar to people of different faiths. Any silent demonstration outside a house of worship would likely be able to create a disturbance only by the content of its message. Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment.

Amici for AppellantsThomas More Society and the Thomas Jefferson Center for the Protection of Free Expression

[ht: Steve Wermiel]

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FAN 51.2 (First Amendment News) Larry Tribe unto the Breach — “I believe Citizens United was rightly decided” (But hold on, there is more . . . )

[J]ust as these issues cannot be intelligently settled by slogans like “money isn’t speech” and “corporations aren’t people,” so too they cannot be satisfactorily settled by proclamations that independent expenditures don’t corrupt or by sweeping assumptions that government regulation of spending on political speech always equals censorship.” — Laurence Tribe (March 9, 2015)

Venturing into dangerous ideological minefields, Professor Larry Tribe has just posted an article on the most controversial topic in the modern free speech era. His article, posted on SSRN, is entitled “Dividing ‘Citizens United': The Case v. The Controversy.” The piece will appear in a future issue of Constitutional Commentary.

Here is how Tribe begins his article:

In the five years since Citizens United, that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told ‘no.'”

And where does the all-too-liberal professor come down on the case that so many liberals love to hate? Well, here is his short take: “As a case dealing with a particular controversy over a proposed publication, I believe Citizens United was rightly decided.” He sounds like another liberal prepared to incur the wrath of his fellow liberals — merely consider how this issue has divided the ACLU. But hold on; the good professor may yet endear his liberal friends with the next admonition:

It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Laurence Tribe

Professor Laurence Tribe

For those reasons and others, Professor Tribe believes we should rethink the First Amendment as it pertains to campaign finance law. “The First Amendment,” he adds, “requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme.” He fears that the Court has begun to privilege “an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture.” That troubles him.

And yet . . . he remains concerned about First Amendment liberty being cabined. That troubles him, too. What to do? Nuance! Balance! Moderation!

On the one hand: “The Supreme Court’s sin in Citizens United is not that it has been wrong to recognize and embrace the libertarian values that inhere in the First Amendment.” (Applause: Conservatives)

On the other hand: “But the libertarian campaign finance law the Court has developed fails in the broader project vital to First Amendment jurisprudence: the sensitive accommodation of competing constitutional values.”  (Applause: Liberals)

→ The problem is that Citizens United represents an “unrelenting skepticism of legislators’ motives, a pathologically rigid doctrinal absolutism, and a naïve, unrealistic economic libertarianism and blindness to political corruption.”

The challenge: “How to understand the First Amendment, and deciding how it should blend libertarian, egalitarian, and democratic values, is among our most difficult constitutional questions.”

The warning: “There may be satisfaction in such intellectual absolutism, in painting in bright colors and with a broad brush. But a wiser path recognizes the difficulty of the normative issues at the heart of campaign finance law and the irreconcilable values that recent cases implicate.”

→ The plea: “This is not a plea for deciding any particular case one way or another. Indeed, as I stated at the outset, I believe that the Court rendered the correct judgment in favor of the right claimed by the corporation that sought to distribute a video critical of Hillary Clinton in Citizens United. This is instead a plea for greater judicial open-mindedness, sensitivity to nuance, and a measure of old-fashioned humility.”

→ The path: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality. The form that these regulations may take is properly policed by the federal judiciary . . .”

Question: Has Professor Tribe found some important common ground? A new day perhaps? Or has he, too, abandoned the values that for so long informed liberal thought? Yesterday repackaged? However you come me down, let the dialogue begin anew.

There is, of course, more (much more), and I urge readers to give serious thought to this thoughtful contribution to our free speech literature.

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FAN 51.1 (First Amendment News) Oklahoma ACLU Issues Separate Statements on Racist Chants

March 9, 2015 (ACLU of Oklahoma Press Release)

OKLAHOMA CITY – Following this weekend’s news of members of the University of Oklahoma’s Sigma Alpha Epsilon Fraternity chanting about lynching African Americans, and the investigative and disciplinary actions in progress, the American Civil Liberties Union of Oklahoma as released the following statements:

The following is attributable to Ryan Kiesel, ACLU of Oklahoma Executive Director:

Sixty-six years ago and after two trips to the United States Supreme Court, Ada Lois Sipuel Fisher became the first African American student to be admitted to the University of Oklahoma College of Law. Even after her admission, she was still segregated from her white peers. With a legal team that included Thurgood Marshall, her case played a critical role in the end of the separate but equal doctrine. As monumental as that victory may have been, the video showing SAE fraternity members at the University of Oklahoma singing a disgraceful racist chant serves as a stark reminder that racism is very much a present reality.

We offer our sincere appreciation to the students, faculty and staff who have joined together in solidarity against hate and racism. They remind us that the spark in Ada Lois Sipuel Fisher still persists in the minds of those who benefitted from her work. Let history say the same of us. At the very least, this awful incident must prompt a robust conversation and a review of every aspect of campus life so that we can combat persistent discrimination and realize racial justice. And as the fates of the students at the center of this controversy unfold, we encourage the administration to demonstrate their commitment to due process; for it is often in protecting the rights of the very worst, we are able to demonstrate our fullest commitment to justice. (emphasis added)

The following is attributable to Brady Henderson, ACLU of Oklahoma Legal Director:

We join with OU President David Boren, as well as the majority of OU students, faculty, and alumni, and with an overwhelming number of Oklahomans in their disgust at SAE’s conduct this past Saturday night. While many Americans paused this weekend to reflect on the 50th Anniversary of Martin Luther King’s famous march in Selma, Alabama, these students marked the occasion by mocking one of the saddest chapters of American history, the mob-fueled, government-sanctioned murder of African Americans. These students remind us that despite King’s victory in Selma, and other battles won by countless citizens with the courage to face hate head-on, racism is not dead or even dormant in modern America, even on our college campuses.

We applaud President Boren’s aggressive response to the SAE’s actions, and we encourage the OU administration to be equally aggressive in ensuring that the due process rights of students remain protected throughout any disciplinary processes against Fraternity members. The deep-rooted problem of racism will not be solved by discipline alone, but by open and honest dialogue and an accounting of where we are and where we need to go not just in our universities, but in the communities university students will one day lead.(emphasis added)

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FAN 51 (First Amendment News) Journalists, Scholars & Others Pay Tribute to Anthony Lewis

Anthony Lewis . . . created a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership. David Cole (May 9, 2013)

Tony Lewis (credit: NYT)

Tony Lewis (credit: NYT)

Anthony Lewis (1927-2013) — reporter, columnist, educator, Pulitzer Prize-winning author, and scholar. He was all of those things and more. I grew up on Tony Lewis (he was born Joseph Anthony Lewis). He was right there, in the New York Times, which in those days you couldn’t get on the Internet – there was none. If you were outside New York you were lucky to find a hard copy at a good hotel or news- stand.  A Lewis column was a staple of one’s diet for those who followed the Court and related matters. And what a corpus of work he set his name to — some 5,600 some articles and columns and five books. That is reason enough to single out the Lewis byline.

→ See Adam Liptak, “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” NYT, March 25, 2013

Happily, the Missouri Law Review recently paid tribute to Tony Lewis in a symposium issue with 13 contributors, several of whom once worked with him and were also close friends of his. (Note: The links below may not open in Safari but should open in Firefox and Chrome.)

  1. Foreword: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis, by Richard Ruben
  2. Keynote: Anthony Lewis and the First Amendment, by Adam Liptak

Articles

  1. Anthony Lewis: What He Learned at Harvard Law School, by Lincoln Caplan
  2. Anthony Lewis: Pioneer in the Court’s Pressroom, by Lyle Denniston
  3. The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat, by Linda Greenhouse
  4. Press Freedom and Coverage in the U.S. and Kosovo: A Series of Comparisons and Recommendations, by Ben Holden
  5. A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law, by Heath Hooper & Charles N. Davis
  6. Anthony Lewis, by Dahlia Lithwick
  7. Legal Journalism Today: Change or Die, by Howard Mintz
  8. Institutionalizing Press Relations at the Supreme Court: The Origins of the Public Information Office, by Jonathan Peters
  9. Setting the Docket: News Media Coverage of Our Courts – Past, Present and an Uncertain Future, by Gene Policinski
  10. As Today’s Tony Lewises Disappear, Courts Fill Void, by David A. Sellers
  11. Making Judge-Speak Clear Amidst the Babel of Lawspeakers, by Michael A. Wolff

Tony Lewis’ Fantasy

You lead me to tell you my fantasy. A happy fantasy. [It is this:] our next President does the equivalent of what Jefferson did in his first inaugural when he was so hated by the Federalists and began his inaugural speech by saying, “We are all Republicans – we are all Federalists.” The next president sets out to say two things. One, there’s nobody unpatriotic here. We’re all Americans together. And two, this administration is going to be an administration of law; where law has been rolled back, we’re going to bring it to the fore again. This country is a government of laws, not men. That’s my fantasy. Will it happen? I doubt it. But I sure think it ought to. (Sept. 12, 2006 Interview, Walter Lippmann House, Cambridge, Mass.)

Go here for a C-SPAN interview I did with Tony in connection with his book Freedom for the Thought That We Hate: A Biography of the First Amendment (2001).

Media Groups Challenge Claim for Profits in the Defamation Case

Jesse Ventura

Jesse Ventura

The case is Ventura v. Kyle, which is presently before the United States Court of Appeals for the Eighth Circuit. The matter involves a defamation lawsuit brought in federal court by Jesse Ventura (former governor of Minnesota and Navy veteran) against HarperCollins concerning its publication of the book American Sniper by Chris Kyle. Last summer, a jury awarded Ventura $1.8 million from the Kyle estate. The case is now on appeal.

Yesterday 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

“[T]he law of libel,” they maintain, has “been clear that while damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants. That proposition has rarely been questioned until this case. Indeed, we know of only one case, decided more than 65 years ago, that is directly on point: Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted in constitutional concerns and the common law relating to libel, the Hart decision holds that a claim for profits may not be asserted in the defamation context. We are aware of no case before or after Hart to the contrary.”

The briefs concludes: “Where, as here, there was no showing of evil intent sufficient to satisfy [Minnesota’s punitive damages law], where, as here, an award of profits can serve no deterrent or punitive purpose, and where, as here, the First Amendment’s abhorrence of exorbitant damage awards untethered to a plaintiff’s true injury is clearly in play, this Court should not be the first to sanction an unprecedented award of a book’s profits.”

 As noted in their amicus brief, the issue of an award of profits in defamation cases is addressed in Dan Dobbs, Law of Remedies: Damages – Equity – Restitution (2d ed.) (“One reason to deny the restitution claim is the threat it presents to free speech. Another is the difficulty of apportioning the publisher’s profit between his own effort and investment and the defamatory material.”)

Geoffrey Stone Weighs in on Oklahoma Expulsion Controversy  Read More

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FAN 50.1 (First Amendment News) Lanham Act Violates the First Amendment Says ACLU

On March 5, 2015,  the national ACLU and its Virginia Chapter filed an amicus brief in the federal district court for the Eastern District of Virginia challenging the constitutionality of Section 2(a) of the Lanham Act (15 U.S.C. § 1052(a)) as violative of the First Amendment. The case is Pro-Football, Inc. v. Blackhorse, et al (# 1:14-cv-01043-GBL-IDD).

aclu_logoHere is a description of the case: “In the wake of the [Trademark Trial and Appeal Board’s] decision last year to cancel a number of federal trademark registrations for the Washington Redskins team name, on the grounds that the marks were disparaging to Native Americans at the time they were issued in violation of section 2(a) of the Lanham Act, Pro-Football, Inc. (“PFI”)—the corporation that owns the Redskins franchise—sought de novo review of that decision in the United States District Court. Filing a district court action rather than appealing allowed PFI to raise claims that were beyond the powers of the TTAB to address—chiefly that section 2(a) is unconstitutional.” Craig C. Reilly is the lead counsel for the Petitioners.

Rebecca K. Glenberg filed the ACLU’s amicus brief. In that brief, the ACLU advanced four arguments:

  1. The Lanham Act regulates private expression protected by the First Amendment
  2. Section 2(a) of the Lanham Act impermissibly mandates viewpoint discrimination
  3. Section 2(a) burdens private speech by placing an unconstitutional condition on the receipt of valuable government benefits, and
  4. Section 2(a) is unconstitutionally vague and over broad.

Here is an excerpt from the ACLU brief:

Few principles in constitutional law are as settled as the First Amendment’s prohibition on government regulation of private speech based on viewpoint. The courts have never blessed a government program that permits government actors to determine the acceptability of a speaker’s viewpoint and then condition benefits based on that determination. The First Amendment harms are magnified when such regulation of speech rests on vague and subjective terms that provide no meaningful notice to speakers as to which speech the government will find acceptable, and thereby risk—and in this case, ensure—inconsistent and discriminatory application.These evergreen principles hold no less true simply because they arise in the context of trademark law. Yet Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), not only condones but mandates viewpoint-based discrimination in the provision of trademark registration. Section 2(a) prohibits the registration of any trademark interpreted by the U.S. Patent and Trademark Office (“PTO”) to be immoral, scandalous, or disparaging to any persons, institutions, beliefs, or national symbols. It is indisputable that registration of a mark provides substantial benefits to a trademark holder; it is also true that many trademarks involve expressive speech and association. Therefore, by authorizing the government to deny registration of certain marks because of a viewpoint-based determination about the character of expressive speech, Section 2(a) violates the First Amendment.

Lee Rowland, Esha Bhandari (both of the national ACLU) and Brett Max Kaufman (Technology Law & Policy Clinic, New York University School of Law) were also on the ACLU amicus brief.

[HT: Anthony Romero]

UPDATE: See commentary here  by Professor Eugene Volokh.

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FAN 50 (First Amendment News) ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds

In my last FAN post I noted that the ACLU’s 2015 Workplan (an eight-page informational and fundraising document) had only a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. Furthermore, a February 24, 2015 two-page ACLU fundraising letter concerning the 2015 Workplan contained no reference whatsoever re protecting free speech rights. In light of this, I invited the ACLU’s Executive Director Anthony Romero “to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan.”

Mr. Romero kindly accepted my invitation and his response of February 27th is set out below. As you can see, protecting free speech freedoms continues to be an important part of the ACLU’s mission even if its fundraising letters sometimes downplay or overlook all the fine First Amendment work the group does.

Burt Neuborne

Burt Neuborne

Unfortunately, Mr. Romero declined to do a Q&A with me, for now at least — but my invitation remains open.

Meanwhile, I am pleased to say that I am scheduled to do a Q&A with Professor Burt Neuborne, who served as the National Legal Director of the ACLU from 1981-86 and who has just published a book entitled Madison’s Music: On Reading the First Amendment.

Stay tuned.  

______________________________________________________________________________

Dear Mr. Collins:

Anthony Romero

Anthony Romero

I appreciate your concern that the 2015 Workplan did not contain a section devoted to the ACLU’s efforts defending First Amendment freedom of expression, but I want to assure you that this remains a robust, bedrock area of our work to which we remain fully committed. As we note in the Workplan, the issues we chose to focus on in that document are just the tip of the iceberg in terms of the ACLU’s work. The Workplan is our annual opportunity to highlight certain broad issue areas and our funding goals to continue to move forward in those particular areas of our work.

Moreover, the issue areas outlined in our Workplan tend to be those where there exists a national trend – such as a coordinated effort to erode rights (e.g., reproductive rights, voter ID laws) or an opportunity for new gains (e.g., freedom to marry, mass incarceration) – or those where recent events warrant a highly coordinated, national effort on the part of the ACLU (e.g., government surveillance, privacy & technology, police misconduct).

First Amendment issues come up throughout our work and play an important role in many of our cases. At the national office, this work comes under the umbrella of our Speech, Privacy, and Technology Project which is dedicated to protecting and expanding the First Amendment freedoms of expression, association, and inquiry; expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology. The project is currently working on a variety of issues, including political protest, freedom of expression online, privacy of electronic information, journalists’ rights, scientific freedom, and openness in the courts.

The project routinely briefs critical First Amendment issues in the Supreme Court and the federal Courts of Appeal. In this past year, we have authored and submitted three friend-of-the-court briefs to the Supreme Court arguing for maximal free speech protections, including: a brief arguing that a political candidate had the right to challenge a law criminalizing “political lies,” (brief available here); a brief arguing that the government must meet a high bar in order for a jury to convict an individual for a “true threat,” whether online or off (brief available here); and, just last week, a brief supporting the Sons of Confederate Veterans’ challenge to Texas’ censorship of “offensive” messages on specialty license plates (brief available here). The ACLU is and has always been fully committed to protecting free speech, even when that speech may be offensive or controversial to many.

[RC: The ACLU also recently filed an amicus brief in the Supreme Court in Williams-Yulee v. The Florida Bar, the judicial election campaign solicitation case.]

The project also maintains a strategic litigation docket focused on new First Amendment issues of national concern. For example, in the last few months we filed a First Amendment claim on behalf of media clients challenging Ohio’s censorship of execution access (case page here), as well as a groundbreaking challenge to Arizona’s recent anti-nudity law – one of numerous such state bills passed in the name of prohibiting “revenge porn,” but drafted so broadly as to function as a broad ban on sharing lawful nudity; that case page is available here. Of course, we also engage in diverse non-litigation advocacy and public education on free expression issues; you can read about our recent First Amendment-related issue advocacy at this link.

aclu_logoFurthermore, our First Amendment freedom of expression work is somewhat unique in that a large share of it involves responding to threats or incidents that occur on the local level and not generally as part of a broader, coordinated threat to freedom of expression. For as long as the ACLU has existed, the vast majority of First Amendment cases have been litigated by our affiliates. At the state level, First Amendment litigation tends to comprise a large portion – in many states perhaps even a majority – of ACLU affiliates’ litigation dockets.

So while free speech work remains a core, priority area of focus for the ACLU, much of the on-the-ground work of preventing or challenging restrictions of freedom of expression is carried out by ACLU attorneys and lobbyists in our local affiliate offices—often, with assistance and resources from the national office. A salient example of this is the ACLU of Missouri’s recent work to protect the rights of protesters in Ferguson; the national office assisted when a federal agency (the FAA) entered a no-fly zone which we believed to improperly limit media access. I’ve also included (at the bottom of this email) some links to our news releases on a selection of recent, ACLU First Amendment cases brought by both the national office and state affiliates, for your reference.

Mr. Collins, I hope this reply provides some clarity with respect to your concerns. Please rest assured that the ACLU remains committed to staunchly defending freedom of speech and expression.

All my best,

Anthony Romero

ACLU work on freedom of protest in Ferguson (highlights) Read More