Tagged: Constitutional Law

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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

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FAN 49.2 (First Amendment News) Court denies cert in ballot initiative disclosure case

Earlier today the Court  released its orders from the February 27th Conference. There were no cert. grants, but the Justices did deny cert. in one case — ProtectMarriage.com-Yes on 8 v. Bowen. [HT: Rick Hasen]

Some opinions may be released next week.  

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. ProtectMarriage.com-Yes on 8 v. Bowen
  2. Kagan v. City of New Orleans
  3. Clayton v. Niska
  4. Pregnancy Care Center of New York v. City of New York 
  5. City of Indianapolis, Indiana v. Annex Books, Inc.
  6. Ashley Furniture Industries, Inc. v. United States 
  7. Mehanna v. United States
  8. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  9. Vermont Right to Life Committee, et al v. Sorrell
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Barbara Babcock reviews new book on Ruth Bader Ginsburg

Professor Barbara Babcock

Professor Barbara Babcock

Over at SCOTUSblog, Standford Law Professor Emerita Barbara Babcock has a book review of Scott Dodson’s new The Legacy of Ruth Bader GinsburgCambridge University Press, 2015 (336 pp., cloth, $29.99), which he edited.

Babcock’s review is titled “Law Professor, Feminist, and Jurist” and draws on some of her own history with RBG.

As you may recall, in an earlier post on this blog Danielle Citron also wrote about Justice Ginsburg and the collection of essays in the Dodson volume.

In case you missed it, take a look at Gail Collins’ recent column in the New York Times titled “The Unsinkable R.B.G.”

(In the interest of full disclosure, I also serve as the book editor for SCOTUSblog.)

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FAN 49 (First Amendment News) ACLU “2015 Workplan” sets out narrow range of First Amendment Activities

When the ACLU was founded in 1920, its focus was on freedom of speech. — Wikipedia 

His expansive reading of civil liberties was arguably [Roger] Baldwin’s greatest contribution to American thought and practice.  It helped to redefine American liberalism and democracy and was propounded in the very period when others subscribed to a much narrower interpretation of First Amendment rights. — Robert Cottrell, Roger Nash Baldwin & the American Civil Liberties Union (2000)

FullSizeRender

A few weeks ago I received the ACLU’s “2015 Workplan: An Urgent Plan to Protect our Rights.” The eight-page, single-spaced document was accompanied two-page letter from ACLU Executive Director Anthony Romero and a contribution form. The Workplan began: “At the beginning of each year, ACLU attorneys and advocates construct a Workplan outlining the major civil liberties battles we are facing. I am proud to share this year’s plan with you.” In that regard he added: “Your passion, energy and financial support are crucial to our ability to meet the challenges ahead and change the lives of millions whose civil liberties are in jeopardy.”

Walter Nelles was the co-founder and first chief legal counsel of the National Civil Liberties Bureau and its successor, the American Civil Liberties Union. He was an ardent defender of free speech rights. His First Amendment cases included Gitlow v. New York (1925) and Whitney v. California (1927).

Anthony Romero

Anthony Romero

As an ACLU supporter and one who has had the honor of writing several ACLU briefs over the years, I read the 2015 Workplan with great interest. As I read the eight-page document I was surprised to find nothing more than 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. The following categories and subcategories were listed in the 2015 Workplan:

1.) Reproductive rights
2.) Discrimination Against Women (Hobby Lobby)
3.)  Anti-Choice Legislation
4.) Freedom to Marry
5.) Privacy & Due Process Rights re Technology
6.) Government Surveillance (4th Amend., Clapper v. Amnesty)*
7.) Third Party Doctrine (expectation of privacy)
8.)  Cell Phone Privacy & GPS Tracking (US v. Jones)
9.) Voter IDs
10.) Police Misconduct
11.)  Mass Incarceration
Harriet Pilpel (1911-1991), Nanette Dembitz (1913-1989), and Nancy F. Wechsler (1916-2009) — Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in New York Times, Co. v. Sullivan.
* The only reference to free speech freedoms came in connection with government surveillance: “[T]he bulk collection of American’s call records . . . [is] an infringement of the twin First Amendment liberties of free association and free expression.” (emphasis added)
Brandenburg v. Ohio (1969) — ACLU lawyer Allen Brown argued the cause for appellant. With him on the briefs were ACLU lawyers Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman.

On February 2, 2015 I sent an e-mail to Mr. Romero. I expressed my concerns re the virtual absence of any real and comprehensive commitment to securing First Amendment free expression rights in any variety of areas beyond the one stated. I just heard back from his office this past Monday, this after having sent a follow-up e-mail earlier that day. I was informed that Mr. Romero “intends to respond.”

Liberty in America is better off because of Al Bendich (1929-2015) and what he did as a lawyer for the American Civil Liberties Union. He gave free speech life to poetry and lawful voice to comedy . . . and more. (January 7, 2015)

I welcome Mr. Romero’s response, if only to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan, the one sent out for fundraising purposes. I will post his response once it arrives.

Update: See Howard Wasserman, “Declaring Victory?, PrawfsBlawg, Fe. 26, 2015.

Invitation to Anthony Romero re a Q&A on the First Amendment 

Beyond his response, I extend a cordial invitation to Anthony Romero to do Question & Answer segment with me — much like the ones I have done with everyone from Professor Laurence Tribe to Judge Richard Posner — related to the ACLU and its views on protecting free expression rights under the First Amendment. I am sure our readers would have great interest in hearing from him. 

______________________________________________________________________________

 THE COURT’S 2014-15 FREE EXPRESSION DOCKET Read More

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FAN 48.1 (First Amendment News) Court Denies Cert in Two First Amendment Cases

 The Court’s latest order list was just made public. In it the Court denied cert. in Kagan v. City of New Orleans (re tour-guide licensing requirements) and in Clayton v. Niska (re a state statute banning false political speech).

  The Court is expected to hand down opinions tomorrow and Wednesday in one or more argued cases. 

 THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. ProtectMarriage.com-Yes on 8 v. Bowen
  7. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Kagan v. City of New Orleans
  2. Clayton v. Niska
  3. Pregnancy Care Center of New York v. City of New York 
  4. City of Indianapolis, Indiana v. Annex Books, Inc.
  5. Ashley Furniture Industries, Inc. v. United States 
  6. Mehanna v. United States
  7. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  8. Vermont Right to Life Committee, et al v. Sorrell
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FAN 48 (First Amendment News) The Dangers and Values of Offensive Speech

 If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful. — Carsten Jensen (Danish author and political columnist)

In Mumbai, India a newspaper was shut down recently and its editor arrested for reprinting a 2006 Charlie Hebdo cartoon of the Prophet Muhammad weeping. According to a New York Times story, such “news coverage often conflicts with the government’s efforts to protect religious groups from insult and disrespect.” One of those who filed a police complaint was Nusrat Ali, a reporter. “You are free to write anything in our country, but you are not free to hurt religious sentiments,” he said. “Why would [Shirin Dalvi] print something that has caused tension and violence across the world?” he asked. “Publishing such cartoons threatens the peace and calm of our country.”

Professor Geoffrey Stone

Professor Geoffrey Stone

Legitimate concerns, real dangers. Ask yourself: what if those dangers became more likely and imminent here? How strong would our commitment to free speech be? Mindful of that, in a thoughtful Huffington Post piece  titled “Charlie Hebdo and the First Amendment,” University of Chicago Law Professor Geoffrey Stone asks:

Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?

Okay, how’s this for starters? — The proposed law seems to codify the heckler’s veto (or, more aptly put, a terrorist’s veto). Even before we venture to answer Professor Stone’s question we would have to assume that such a law would be precise and narrowly tailored, this as a constitutional threshold matter. That said, is the gravity of the threatened evil so great as to relieve the government of its constitutional obligation to, in Professor Stone’s words, “take every possible measure to prevent the violence before it may silence the speaker”? If so, would not the terrorist’s veto almost always trump the speaker’s First Amendment rights?

Terrorism is just bullying, extreme bullying. — Bill Maher (Jan. 2015)

Among other things, Professor Stone’s hypothetical invites us to think hard about just how far down the free speech road we wish to travel when that path may lead to lethal dangers. However absolutist the defenders of free speech may be, even they have their limits as Pater Holmes made clear in his Abrams dissent.

The Values of Offensive Speech 

Ilya Shapiro

Ilya Shapiro

But there is more to this free speech debate than the dangers of so-called hate speech; there is also the question of the values, if any, of such speech. And that is the question that Carsten Jensen asks us to consider in the epigraph quote above.

Thankfully, a brief recently filed in the Supreme Court by the Cato Institute speaks to precisely that question. The amicus brief was submitted by Ilya Shapiro (counsel of record) and Robert Corn-Revere in Walker v. Texas Division, Sons of Confederate Veterans, the license plate case that will be argued next month.

Here are a few excerpts from their brief, which was recently filed with the Court:

 – Offensive Speech Contributes to the Marketplace of Ideas: “The borderlands of the marketplace of ideas are inhabited by ideas that unsettle and offend. Only those ideas that people are allowed to express can be freely traded, so a “free trade in ideas” cannot exist when some ideas are relegated to the black market. . . . Indeed, because offensive speech changes the parameters of the marketplace, it is as vital to the exchange of ideas as so-called mainstream speech. Without expanding the borders of the marketplace, a society may stagnate. If no one ever offensively says ‘the Emperor has no clothes’ then a society may be condemned to dynasties of naked emperors, and that would be truly offensive.”

And they quote Salman Rushdie, “who certainly knows something about offending people: ‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Without the freedom to challenge, even to satirise all orthodoxies, including religious orthodoxies, it ceases to exist.'”

 Offensive Speech Fosters Self Expression and Helps Develop Personal Autonomy: “Expressing one’s deepest thoughts, feelings, and values is vital to defining oneself as a unique and autonomous individual. Those who are restrained from self-expression are often called ‘repressed,’ and years of therapy is often the cure. . . . Even more than ‘mainstream’ speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it ‘might be offensive to any member of the public,’ then the government has closed off an important avenue for self-expression.”

There is more, much more, to this truly insightful (dare I say inciteful?) brief. In a legal world where amicus briefs too often add little beyond formulaic case-crunching, this brief is chock-full of value added, and for that reason I commend it to you.

Meanwhile, I leave you with the closing words of the Cato brief: “It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression.”

Is Flower v. U.S. (1972) still good law? . .  . & why that question is important 

On remand, the United States Court of Appeals affirmed Mr. Apel’s conviction, rejecting his First Amendment argument with no mention or apparent consideration of Flower v. United States. It seemingly accepted the argument made by the United States that Flower is no longer good law. — Erwin Chemerinsky, cert. petition in Apel v. United States (2015)

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The Terrorist’s Veto

We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?

Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”

Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.

The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.

It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)

It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:

[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.

To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”

What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?

There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.