Tagged: Constitutional Law


FAN 73 (First Amendment News) D.C. Circuit strikes down SEC “conflict minerals” rule by 2-1 margin

Yesterday, the DC Circuit handed down its ruling in National Association of Manufacturers v. SECThe case involves a First Amendment challenge brought by the National Association of Manufacturers concerning the SEC’s conflict minerals disclosure rule, which requires companies to publicly disclose their use of conflict minerals that originated in the Democratic Republic of the Congo (DRC) or an adjoining country. “Conflict minerals” are minerals mined in conditions of armed conflict and human rights violations, particularly in the DRC.

A. Raymond Randolph (photo by Adrian R. Rowan)

Judge  Raymond Randolph (photo by Adrian R. Rowan)

By a 2-1 margin, the court ruled that the SEC disclosure requirement violated the First Amendment. Circuit Judge Raymond Randolph wrote the majority opinion which Judge David Sentelle joined. Judge Sri Srinivasan dissented.

The case was reheard in light of the court’s ruling in American Meat Institute v. U.S. Department of Agriculture (D.C. Cir. 2014) (en banc) and its treatment of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).

“Using Zauderer’s relaxed standard of review,” said Judge Randolph, “AMI held that the federal government had not violated the First Amendment when it forced companies to list on the labels of their meat cuts the country in which the animal was born, raised, and slaughtered. The AMI court therefore overruled the portion of our decisions in NAM, R.J. Reynolds, and National Association of Manufacturers v. NLRB holding that the analysis in Zauderer was confined to government compelled disclosures designed to prevent the deception of consumers.” In yesterday’s ruling, the majority declared that the issue then before it was “whether Zauderer, as now interpreted in AMI, reaches compelled disclosures that are unconnected to advertising or product labeling at the point of sale.”

Judge Randolph concluded that “Zauderer has no application to this case.This puts the case in the same posture as in our initial opinion when we determined that Zauderer did not apply, but for a different reason. As we ruled in our initial decision, we need not decide whether ‘strict scrutiny or the Central Hudson test for commercial speech’ applies. For the reasons we gave in that opinion, the SEC’s ‘final rule does not survive even Central Hudson’s intermediate standard.’ We need not repeat our reasoning in this regard.” (footnotes omitted)

To buttress the majority’s First Amendment argument, Judge Randolph added: “But given the flux and uncertainty of the First Amendment doctrine of commercial speech, and the conflict in the circuits regarding the reach of Zauderer, we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.” (footnotes omitted) The majority thus concluded that “the Commission’s final rule, 77 Fed. Reg. at 56,362-65, violate[s] the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have ‘not been found to be ‘DRC conflict free.’’”

Judge Sri Srinivasan

Judge Sri Srinivasan

Writing in dissent, Judge Srinivasan argued that “[i]ssuers of securities must make all sorts of disclosures about their products for the benefit of the investing public. No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem. So here, there should be no viable First Amendment objection to a requirement for an issuer to disclose the country of origin of a product’s materials—including, say, whether the product contains specified minerals from the Democratic Republic of the Congo (DRC) or an adjoining country, the site of a longstanding conflict financed in part by trade in those minerals. Such a requirement provides investors and consumers with useful information about the geographic origins of a product’s source materials. Indeed, our court, sitting en banc, recently relied on “the time-tested consensus that consumers want to know the geographical origin of potential purchases” in upholding a requirement for companies to identify the source country of food products. Am. Meat Inst. v. U.S. Dep’t of Agric. It is hard to see what is altogether different about another species of “geographical origin” law requiring identification of products whose minerals come from the DRC or adjoining countries.”

The Liberal Divide Widens — Abrams & Post on the Vices vs Virtues of Reed Ruling Read More


FAN 72 (First Amendment News) Megyn Kelly — Bold Defender of Free Speech Freedoms

In America we stand for liberty, and freedom to offend, to provoke, to persuade, and to defy. — Megyn Kelly

Megyn Kelly

Megyn Kelly

Though she is a news anchor, she is very much in the news these days. She is the object of a national discussion about women. And it all stemmed from a pointed, polite, and entirely appropriate  question she posed to the most outspoken candidate currently seeking to be President of the United States.

She is, of course, Fox’s Megyn Kelly, the one who has a TV following of 2.8 million followers. Before entering the world of journalism, Ms. Kelly held her able own at the Jones Day law firm.

Her calling card: Feisty, informed, incredulous, and quick-witted. Make of her what you will — too conservative, too blond, or maybe too tough on the likes of Karl RoveDick Cheney and Donald Trump. As for the Trump flap, Ms. Kelly stood her free-press ground: ““I certainly will not apologize for doing good journalism, so I’ll continue doing my job without fear or favor,” she told viewers of The Kelly File. By the same journalistic measure, recall Ms. Kelly’s skepticism, which proved to be founded, concerning Duke University’s alleged sexual assault incident.

However you cast her, there is also this: Megyn Kelly is bullish on the First Amendment. While we still need to hear more from her on any variety of free-speech issues, what we do know at this point is that she is a woman who yields no ground when it come to our First Freedom.

[N]o matter how abhorrent one might find another’s words, in this country, we defend their right to say them. Standing up for that principle is not an endorsement of the controversial speech. It is promoting a value at the very core of who we are.  Megyn Kelly

There’s a spark of Nat Hentoff in her steadfast commitment to free speech. Just consider her response to a claim made by TV critic Howard Kurtz: “There’s a reason free speech is in Amendment number one. It goes to the core of our principles as Americans and what we stand for. You can hate the message, you can hate everything they’re saying … that is allowed in the United States of America, because, as the Supreme Court once put it, the answer to speech you do not like is not less speech. It’s more speech,”

Mr. Kelly & Mr. O'Reilly

Ms. Kelly & Mr. O’Reilly

When it comes to free speech, the TV news anchor and commentator is willing to go toe-to-toe with  anyone, even if that someone is Bill O’Reilly: “The relevnt question is not [whether] those under attack say something offensive, the relevnt question is what we do about a group that wants to kill us for exercising our contitutional rights.” (See also here)

Before the recent Trump flap, she gave the blustery billionaire a civics lesson: “What do we stand for as Americans if not freedom of speech and the ability to express yourself?”

Not surprisingly, some in the First Amendment community are taking note of Ms. Kelly and her views on free speech.

Alan Dershowitz: “Megyn Kelly has demonstrated how the First Amendment can be used to expose the real views of candidates. She provokes, and she succeeds. Keep it up.” (see also here)

Nadine Strossen: “As a law professor, I join Prof. Alan Dershowitz in awarding Megyn Kelly an A for her solid understanding of core First Amendment principles that Justices across the ideological spectrum have consistently upheld.  As a civil libertarian, I award her an A+ for her fearless, impassioned, and eloquent defense of those principles when too many others – also across the ideological spectrum – seek to trim back our First Amendment rights in response to what the Supreme Court has called “the heckler’s veto,” but what Megyn has correctly referred to as “the assassin’s veto.”

Robert Corn-Revere: “Megyn Kelly provides a clear and consistent reminder that the right to free expression includes the right to offend, and, in fact, that right cannot exist when some assert a right not to be offended.  Ms. Kelly recognizes that the role of some people in the marketplace of ideas may be mainly to serve as bad examples – but that is the only way the system can work effectively.  Everyone should have their say, and people will choose what ideas to accept or to reject.”

“Kelly speaks in a jazz-improv progression of italics, all-caps and boldface.” That is how Jim Rutenberg portrayed her in a recent and lengthy New York Times magazine profile titled “The Megyn Kelly Moment.” There is truth there provided one adds the word informed.

Ms. Kelly & Richard Fowler

Ms. Kelly & Richard Fowler

When it comes to free speech, her passion tracks her informed grasp of her subject. Simply consider her exchange with Richard Fowler when they were discussing the “Draw Muhammad” cartoon contest: “The more offensive speech is, Richard, the more protection it needs. That’s how the First Amendment works. We can defend the First Amendment right to say it without aligning ourselves with the message.” She took exception, strong exception, to notion that Americans should be squeamish or apologetic about their exercise of their First Amendment rights. She took even strainer exception to those who counseled otherwise.

In much the same vein, she took the Catholic League’s President, Bill Donohue, to task over his criticism of the Charlie Hebdo cartoonists. With finger pointed and eyes scanning, she quoted approvingly from Chief Justice William Rehnquist’s 1988 majority opinion in Hustler Magazine v. Falwell: “[T]he freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.” [quoting Bose Corp. v. Consumers Union of United States, Inc. (1984)]

Ms. Kelly & Professor Eugene Volokh

Ms. Kelly & Professor Eugene Volokh

In a May 7, 2015 program, Kelly found a First Amendment ally in UCLA Law Professor Eugene Volokh. At the outset of that program she was emphatic: “The terrorist point was to shut us up, not just the organizers of the [Draw Muhammed Cartoon Contest] but also any American who danes to disagree with their  way of life or thinking. . . . In this country we have every right to say what we want to say about Muhammed or about anyone else for that matter.” Volokh agreed: “People are free to engage in much more offensive speech than that.” He went on to explain how the contours of modern free speech law were consistent with Ms. Kelly’s views and how such speech had value as “a reaffirmation of our free speech rights . . . “

Will her commitment continue? Will she vacillate when other tough First Amendment issues are presented to her? Who knows?  That said, it seems likely that Ms. Kelly will become an even grander figure in the world of free speech in the days and months ahead.

 See here for a listing of Ms. Kelly’s various comments concerning the First Amendment.

Opinion in Amarin Pharma, Inc. v. U.S. Food & Drug Adminstration Read More


FAN 71.2 (First Amendment News) Floyd Abrams prevails in off-label drug case — Court grants preliminary injunction

[Today a] U.S. judge . . . barred the U.S. Food and Drug Administration from stopping Irish drugmaker Amarin Corp from promoting its fish oil drug for off-label uses, saying the company is protected by the First Amendment.The preliminary order by U.S. District Judge Paul Engelmayer in Manhattan means Amarin can promote its Vascepa pill to doctors for off-label use as long as it does so truthfully. Friday’s decision is a preliminary injunction, not a final order. However, Engelmayer said in granting the injunction that Amarin was likely to prevail. –Reuters, Aug. 7, 2015

Four days ago I wrote a post titled “Amarin v. FDA –Important Commercial Speech Case May be Decided Soon.”

Well, that case was decided today. In a detailed and nuanced 71-page opinion, U.S. District Judge Paul A. Engelmayer ruled in the Plaintiffs’ favor and granted a preliminary injunction. Floyd Abrams was the lead counsel for Amarin.

Recall the respective claims made by the parties:

→ Plaintiff’s Claim: “Amarin Pharma wants to provide healthcare professionals with truthful, non-misleading information about its prescription drug Vascepa®, and four doctors who want to receive that information, as they determine when and whether to prescribe that drug. If Amarin provides that information, however, it is at high risk of criminal and civil sanctions being sought against it by the United States.”

→ Government’s Claim: “Plaintiffs seek a court order that would allow Amarin to distribute its drug Vascepa under circumstances which could establish that Amarin intends an unapproved new use for Vascepa, i.e., a use for which FDA has not determined that the drug is safe and effective. But Plaintiffs’ legal arguments strike at the very heart of the new drug approval process, and a court decision in Plaintiffs’ favor has the potential to establish precedent that would return the country to the pre-1962 era when companies were not required to prove that their drugs were safe and effective for each of their intended uses.”

→ District Court Holding

The Court has held that Amarin’s proposed communications, as modified herein, are presently truthful and non-misleading. But the dynamic nature of science and medicine is that knowledge is ever-advancing. A statement that is fair and balanced today may become incomplete or otherwise misleading in the future as new studies are done and new data is acquired. The Court’s approval today of these communications is based on the present record. Amarin bears the responsibility, going forward, of assuring that its communications to doctors regarding off-label use of Vascepa remain truthful and non-misleading.

→ District Court’s order:

The Court grants Amarin’s application for preliminary relief. Specifically, the Court declares that:

(1.)  Amarin may engage in truthful and non-misleading speech promoting the off-label use of Vascepa, i.e., to treat patients with persistently high triglycerides, and under Coronia, such speech may not form the basis of a prosecution for misbranding; and

(2) Based on the information presently known, the combination of statements and disclosures that Amarin proposes to make to doctors relating to the use of Vascepa to treat persons with persistently high triglycerides, as such communications have been modified herein,* is truthful and non-misleading.

See alsoCourt Approves Amarin (AMRN) to Tell Doctors About Off-Label Vascepa Usage,” StreetInsider.com, Aug. 7, 2015 (listing approved statements).


FAN 71.1 (First Amendment News) 4th Circuit Strikes Down Anti-Robocall Statute

Earlier today a three-judge panel of the Court of Appeals for the Fourth Circuit struck down South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446 (2014)). The unanimous opinion was written by Circuit Court Albert Diaz and joined in by Circuit Judges James A. Wynn, Jr. and Stephanie Thacker.

The case is Cahaly v. Larosa (4th Cir., Aug. 6, 2015) (Case #: 14-1651).

Here is the robocall message:

As you may have heard, Speaker of the House Nancy Pelosi is coming to South Carolina.

Do you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come campaign for her?

Press 1 if you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come and campaign for her.

Press 2 if you think incumbent Democrat Anne Peterson Hutto should not invite her fellow Democrat Nancy Pelosi to come and campaign for her.

Here is how Judge Diaz’s opinion begins:

Robert C. Cahaly, a self-described Republican political consultant, was arrested for alleged violations of South Carolina’s anti-robocall statute. After the charges were dismissed, Cahaly filed suit, challenging the statute on three First Amendment grounds: as an unlawful regulation of speech, as impermissibly compelling speech, and as unconstitutionally vague. Cahaly also sought damages from the law enforcement officials involved in his arrest (and the agency employing them), advancing claims under 42 U.S.C. § 1983 and state law for false imprisonment and malicious prosecution.

Under the content-neutrality framework set forth in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), we find that the anti- robocall statute is a content-based regulation that does not survive strict scrutiny. (footnote omitted)

Later, and drawing on the Reed opinion, Judge Diaz added:

The Supreme Court recently clarified the content-neutrality inquiry in the First Amendment context. In Reed, the Court explained that “the crucial first step in the content-neutrality analysis” is to “determin[e] whether the law is content neutral on its face.” 135 S. Ct. at 2228. At the second step, a facially content-neutral law will still be categorized as content based if it “cannot be ‘“justified without reference to the content of the regulated speech,”’ or . . . adopted by the government ‘because of disagreement with the message [the speech] conveys.’” Id. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

. . . .  The asserted government interest here is to protect residential privacy and tranquility from unwanted and intrusive robocalls. Assuming that interest is compelling, we hold that the government has failed to prove that the anti-robocall statute is narrowly tailored to serve it. Plausible less restrictive alternatives include time-of-day limitations, mandatory disclosure of the caller’s identity, or do-not-call lists. 

. . .  In addition, the record contains evidence that the anti- robocall statute is overinclusive. The Defendants themselves cite to a report from a U.S. House of Representatives committee that concluded, “Complaint statistics show that unwanted commercial calls are a far bigger problem than unsolicited calls from political or charitable organizations.” H.R. Rep. 102-317, at 16 (1991). Yet the statute also targets political calls.

At the same time, the statute suffers from underinclusiveness because it restricts two types of robocalls– political and consumer–but permits “unlimited proliferation” of all other types. . . 

Because the statute does not pass muster under strict scrutiny, we affirm the district court’s judgment declaring it unconstitutional.

[ht: Tony Mauro]

Related News Items


FAN 71 (First Amendment News) Just Released: 2nd ed. of Cogan’s “The Complete Bill of Rights” — 30 New Pages on History of Press & Assembly Clauses

This book is an invaluable resource for constitutional scholars, teachers, litigators, and judges alike. It collects and collates the basic texts necessary for informed interpretation of the Bill of Rights and gives them to researchers in a compact, comprehensive, and reliable form that is wonderfully organized for both quick scanning and sustained critical analysis. It makes previously difficult research tasks easy and opens new lines of thinking at a glance.– Anthony G. Amsterdam (2015)

41lkMJ+mUtL._SX348_BO1,204,203,200_The second edition of Professor Neil Cogan’s monumental The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (Oxford University Press) has just been released. Get out your wallet, for this book is well worth the $185.00 list price. Really!

Here is what Floyd Abrams said of the first edition: “For anyone interested in our Constitution, our history, or our political theory, this book is an intellectual treasure chest. It is more than legislative history. It is constitution-drafting in the raw — all the proposals and all the give-and-take (some of it disturbing) that resulted in the adoption of the Bill of Rights.” The historian Stanley Katz referred to it as “a major occasion in American publishing. . . . This is a triumph of careful and thoughtful scholarship. It is now one of the essential components of the the library of constitutionalism.” Though it is hard to imagine, Cogan’s second edition is even better and more triumphant!

 The second edition (1362 pp.) almost doubles the first edition (705 pp.) in length by adding, among other things, lengthy excerpts from the treatises and dictionaries familiar to judges and lawyers in the 1780s. (Note: the pages in the new edition are also longer and its margins are narrower.)

In the First Amendment section — other than in the religion clauses segments which total 146 pages — new materials were added to the Press Clause segment and to the Assembly Clause segment. The majority of the newly added materials in those areas appears in the Press Clause segment (five new entries: Bacon, Burn, Cunningham, Jacob, and Viner) and one new entry for the Assembly Clause segment (Burn). The new sources materials for those segments of second edition of The Complete Bill of Rights are listed below:

  1. Matthew Bacon, A New Abridgment of the Law (London (Savoy): E. & R. Nutt & R. Gosling, 1736) [NB: hyperlink is to a later edition]
  2. Richard Burn, Justice of the Peace & Parish Officer (London: Ho. Woodfall & W. Strahan, 10th ed., 1776) [NB: hyperlink is to a later edition]
  3. T. Cunningham, A New And Complete Law-Dictionary (London: Law Printers to the King, 1764, 1765) (Adams Library)
  4. Giles Jacob, The New-Law Dictionary (London (Savoy): Henry Lintot, 1743) (Adams Library) [NB: hyperlink is to an earlier edition]
  5. Charles Viner, A General Abridgment of Law and Equity (London, 1742) (Adams Library)

In the Press Clause segment, the 27 pages of new materials (pp.  182-208) consist of definitions and discussions of defamation:

  • What is it?
  • What amounts to a libel?
  • How much certainty is required?
  • Can statements made in court amount to defamation?
  • Who qualifies as a libeler?
  • What constitutes publishing?
  • What matters are for a judge or jury to decide?, and
  • What  punishment (civil and/or criminal), if any, is appropriate?

Beyond this, there is also an entry from Richard Burn’s treatise concerning religious and civil laws regulating swearing (pp. 206-208)

The new entry concerning the Assembly Clause (pp. 254-61) segment consists of seven pages (also from Richard Burn’s treatise). Those pages largely concern definitional and related questions, which are divided into the following six subcategories:

I.    “What is a riot, rout, or unlawful assembly”?

II.   “How the same may be restrained by a private person.” [re common law powers to suppress a riot]

III.  “How by a constable, or by other peace officer.” [re common law powers to suppress a riot]

IV.  “How by one justice.” [re statutory powers of a justice of the peace to restrain, arrest, chastise or punish.]

V.    “How by two justices.”  [re statutory powers of two or three justices of the peace to use “the power of the country” or that of the sheriff to enforce an order re a riot or unlawful assembly]

VI.  “How by a process out of chancery.” [re statutory powers of chancery court to inquire into the truth of any complaint brought by an aggrieved party].

Professor Neil Cogan

Professor Neil Cogan

Whatever one thinks of textualism and/or historicism, Professor Cogan has performed a great public service in bringing into sharper focus the historical backdrop of the Bill of Rights. In a 1993 letter to Cogan, the late Gerald Gunther tagged the first edition as a “very valuable book” and a “marvelous collection” of historical documents. (Cynthia Cotts, “A Dean’s Book on Bill of Rights Scores with Supremes, Scholar,” National Law Journal, Nov. 24, 1997). For those who knew Gerry Gunther, he was not one to offer exaggerated or unmerited praise. That said, he was too modest in his assessment of The Complete Bill of Rights. Then again, perhaps he knew better than most that superlatives may sometimes devalue the true worth of a great work. In that spirit, nothing much need be added other than this: The second edition of The Complete Bill of Rights is even more “valuable” than the first.    

Cert Petition Filed in Occupational Speech Case Read More


FAN 70.1 (First Amendment News) Amarin v. FDA –Important Commercial Speech Case May be Decided Soon

The FDA has long sought to ban manufacturers from promoting off-label uses of approved drugs and medical devices.  In taking the position that manufacturers and their agents cannot promote off-label uses, the FDA suggests they are safeguarding the public from misbranded medical products and ensuring that manufacturers do not circumvent the drug and device approval processes. Critics, however, have long contended that the FDA’s position violates the First Amendment to the extent it prohibits truthful speech. — Evelien Verpeet, ReedSmith, June 18, 2015

Should pharmaceutical companies be able to advertise drugs for uses not  approved by the FDA? It seems like a no brainer — of course not! But as with so many other things in life and law, the answer (especially the First Amendment answer) is not so obvious.

→ The caseAmarin Pharma, Inc. v. United States Food & Drug Administration (Dist. Ct., S. Dist. NY).

→ Judge: The matter was argued before U.S. District Judge Paul A. Engelmayer on July 7, 2015. A ruling is expected soon.

Unknown5→ Plaintiff’s Claim: “Amarin Pharma wants to provide healthcare professionals with truthful, non-misleading information about its prescription drug Vascepa®, and four doctors who want to receive that information, as they determine when and whether to prescribe that drug. If Amarin provides that information, however, it is at high risk of criminal and civil sanctions being sought against it by the United States.”

U.S. Atty. Preet Bharara

U.S. Atty. Preet Bharara

→ Government’s Claim: “Plaintiffs seek a court order that would allow Amarin to distribute its drug Vascepa under circumstances which could establish that Amarin intends an unapproved new use for Vascepa, i.e., a use for which FDA has not determined that the drug is safe and effective. But Plaintiffs’ legal arguments strike at the very heart of the new drug approval process, and a court decision in Plaintiffs’ favor has the potential to establish precedent that would return the country to the pre-1962 era when companies were not required to prove that their drugs were safe and effective for each of their intended uses.”

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions. But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses. — David B. Rivkin Jr. &  Andrew Grossman, WSJ, May 21, 2015

 P’s Counsel: Floyd Abrams is the lead counsel for the Plaintiff with Joel Kurtzberg and Michael B. Weiss (see here re P’s complaint)

→ Gov.’s CounselPreet Bharara is the attorney for the Defendant along with Ellen London and Benjamin Mizer

→ Amicus Briefs: Pharmaceutical Research and Manufacturers of America and Washington Legal Foundation — both in support of the Plaintiff / Public Citizen in support of the United States

→ FDA Letter to Judge Engelmayer, June 8, 2015 (see here for a discussion of the mootness issue raised by this letter)

Excerpts from United States v. Caronia (2nd Cir. 2012) re off-label promotions 

The government’s construction of the FDCA asprohibiting off-label promotion does not, by itself, withstand scrutiny under Central Hudson’s third prong [that the regulation directly advance the government’s interests] . . . . The last prong of Central Hudson requires thegovernment’s regulation to be narrowly drawn to further the interests served. . . Here, the government’s construction of the FDCA to impose a complete and criminal ban on off-label promotion by pharmaceutical manufacturers is more extensive than necessary to achieve the government’s substantial interests. . . . We conclude simply that the government cannot prosecute pharmaceutical manufacturers and their representatives under the FDCA for speech promoting the lawful, off-label use of an FDA-approved drug. Judge Denny Chin for the majority.

* * * *

[T]he majority calls into question the very foundations of our century-old system of drug regulation. I do not believe that the Supreme Court’s precedents compel such a result. . . . If drug manufacturers were allowed to promote FDA-approved drugs for non-approved uses, they would have little incentive to seek FDA approval for those uses. — Judge Debra Ann Livingston dissenting

Summary of Amarin’s First Amendment Arguments Read More


FAN 70 (First Amendment News) 10 Little known or long forgotten facts about the First Amendment

Since the news slows down in the summer, I thought I’d share some little known or long forgotten facts about the First Amendment. They concern everything from the text of the First Amendment / to Holmes and his 1919 opinions / to the first woman who argued a free-speech case in the Supreme Court / to Robert L. Carter’s ideas about freedom of association and his subsequent victory in NAACP v. Alabama / to the opinion Richard Posner wrote in NAACP v. Button / to the author of the famous line in Sullivan / to Ralph Nader and the origins of the modern commercial speech doctrine and more.

* * *  *

  1. Does any Justice (originalists, textualists, and others, living or dead) have any idea of what exactly the word abridge means as used in the First Amendment? To the best of my knowledge, no member of the Court (including Justices Hugo Black, Antonin Scalia, and Clarence Thomas) has ever devoted any serious ink to this definitional question. (see here for a discussion of the word).
  2. Justice Oliver Wendell Holmes was not the first person to use the phrase clear and present danger in a legal context. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”: Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” (John Fontana, 12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002)
  3. Notwithstanding what the Court did in Brandenburg v. Ohio (1969), the holdings in Schenck v. United States (1919), Debs v. United States (1919) and Dennis v. United States (1951) have never been formally overruled.
  4. In his concurrence in Whitney v. California (1927), Justice Louis Brandeis flagged his substantive agreement with the majority’s judgment: “[In this case] there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed.” (emphasis added)
  5. The first woman to argue a free speech case (though not a First Amendment case) in the Supreme Court was Olive Rabe — the case was United States v. Schwimmer (1929). It was nearly 40 years before another woman represented a rights claimant in a free-speech case in the Supreme Court. The woman was Eleanor Holmes Norton, a woman of color; the case was Carroll v. President & Commissioners of Princess Anne (1968). As with Olive Rabe, few if any know or remember that Eleanor Holmes Norton, now a member of Congress, was the first woman to represent a rights claimant in the Supreme Court in a First Amendment free-expression case. (Collins & Hudson: “To the high court: Olive Rabe representing Rosika Schwimmer“).
  6. the young Robert L. Carter

    the young Robert L. Carter

    Robert L. Carter successfully argued NAACP v. Alabama (1958). In the NAACP’s brief and in the course of oral arguments (Jan. 15-16, 1958) Mr. Carter stated: “We contend that the order to require us to disclose the list of our members is a denial of our right — the right of a corporation and the right of its members — to free speech and freedom of association and is protected by the First Amendment.” Years earlier Mr. Carter wrote a post-graduate thesis on the First Amendment while at Columbia Law School, this after having received his J.D. from Howard University. (Collins & Chaltain, We Must not be Afraid to be Free)

    (See box below re Carter’s LLM thesis)

  7. Though Justice Brennan is formally credited with authoring NAACP v. Button (1963), the opinion was actually written by his law clerk Richard Posner. “That was one I did for Brennan,” Posner told Kenneth Durr in a 2011 interview.
  8. The famous prhrase, “debate on public issues should be uninhibited, robust, and wide-open,” originated with Stephen R. Barnett, one of Justice Brennan’s law clerks in New York Times v. Sullivan (1964). (Stern & Wermiel, Justice Brennan: Liberal Champion)
  9. For decades before before Citizens United (2010), most of the appellate challenges to campaign finance laws were brought by liberals, liberal groups, or labor unions. (Collins & Skover, When Money Speaks (2014))
  10. The emergence of the modern commercial speech doctrine was made possible by Ralph Nader’s group, Public Citizen. Virginia Pharmacy Board v. Virginia Consumer Council (1976) was successfully argued by Alan Morrison, who was then affiliated with Public Citizen. Earlier, Morrison had submitted an amicus brief to the same effect in Bigelow v. Virginia (1975).

The Three Freedoms

by Robert L. Carter

submitted in partial fulfillment of the requirements for the degree of Masters of Law in the Faculty of the School of Law, Columbia University.

August 1, 1941

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FAN 69 (First Amendment News) Justice Alito discusses four First Amendment cases in Kristol interview — Free-Speech Jurisprudence Comes into Sharper Focus

“[I]f we lose focus on what is at the core of the free-speech protection by concentrating on . . . peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction.” — Justice Samuel Alito

Recently, Justice Samuel Alito participated in a video-recoreded interview with Bill Kristol. In the “Conversations with Bill Kristol” program the Justice discussed his legal education and the workings of the Supreme Court. He also discussed four First Amendment free-expression cases: United States v. Stevens (2010), Snyder v. Phelps (2011), United States v. Alvarez (2012), and Citizens United v. Federal Election Commission (2010).

Below are some excerpts I transcribed from the video-recorded interview in which Justice Alito discussed the First Amendment, this in response to questions posed to him by Mr. Kristol. I have added captions to the transcript and have edited it in places as well. (There is also a transcript of the entire interview  (login required) on the “Conversations with Bill Kristol website.)    

Following the exchange between the Justice and Mr. Kristol, I added some preliminary commentaries on what Justice Alito’s remarks may suggest about his larger First Amendment jurisprudence.  

Finally, I ended with some general information about Justice Alito and his free-speech jurisprudence.  

The Stevens Case

Justice Alito on "Conversations with Bill Kristol"

Justice Alito on “Conversations with Bill Kristol”

The Justice’s discussion of Stevens — the videoing of animal cruelty case — was largely descriptive. What concerned Justice Alito about the case the fact that it was “virtually impossible to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?”

Because of overbreadth problems, seven Justices voted to strike down the law on First Amendment grounds while Justice Alito felt otherwise and dissented.

The Phelps Case

Here, too, much of the discussion of Phelps — the military funerals protest case — was descriptive. What concerned the Justice was the fact that in “this particular case the . . .  [protesters] had placards that said horrible things about [the soldier being buried] . . . It was very distressing to the family members, who were in attendance.”

“So they were sued under a very well-established tort that goes back to the nineteenth century — the intentional infliction of severe emotional distress. And I thought that this tort constituted a reasonable exception to the First Amendment, but my colleagues disagreed about that.”

Bill Kristol

William Kristol

Mr. Kristol: “. . . What about the obvious sort of simple argument that . . . it is a slippery slope, that you cannot curtail speech? That is kind of the argument that the majority made, in one way or  the other, I would say.”

Justice Alito: “Well I think that some members of the majority — this is not based on inside information, this is what I get from reading the opinion — I think that there are those who would support the majority decision in both those cases for exactly that reason. So if we say, even in these outrageous situations, ‘we will not tolerate any abridgment of freedom of speech,’ then when something comes along that I would regard, and I think our cases would regard as really being at the core of the free-speech protection, these decisions provide a guarantee, or they provide a wall of proaction against a bad decision in those areas. If I really believed that to be the case, I might think it was an appropriate tradeoff. I don’t think that’s the case. I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”

The Alvarez Case

Justice Alito: “So what I think has been going on in those two cases and another one where I was in dissent, this time not by myself, in United States v. Alvarez, which had to do with the constitutionality of a statute passed by Congress called ‘The Stolen Valor Act,’ [which] prohibited a false claim of having received a military medal. . . .”

Mr. Kristol: “Which was happening a lot at the time.”

Justice Alito: “It was happening a lot. People were making up, you know, claiming to have won the Congressional Medal of Honor . . . “

Reflecting on StevensPhelps and Alvarez, Justice Alito stressed that “those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech.”

He then developed that point as noted below.

Protecting Core Political Speech

Justice Alito: “I think freedom of speech protects and serves many purposes, but I believe, and I think the Court has said that at the core, whatever other purposes it may serve, it is vitally important for democratic self-government. If people cannot debate public issues, if they cannot debate the relative merits of political candidates, then democracy is basically impossible. So I think that is the core of the protection. These cases involving . . . depictions of animal cruelty, the protest at military funerals, [and] falsely claiming to have won the Congressional Medal of Honor don’t involve anything like that.”

“And if we lose focus on what is at the core of the free-speech protection by concentrating on these peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction. In the cases that we’ve had that I think involve core free speech. . . the chief example that I would give from my time on the Court is the Citizens United case. . . . [N[ow that [case] came out five to four . . . . Citizens United, I think, is core political speech. It is a video about a candidate for the Presidency of the United States. If that’s not protected by First Amendment free speech, by the First Amendment free speech guarantee, I don’t know what is.”

“So on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.”

Mr. Kristol: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.”

Justice Alito: “I don’t think it works.”

Mr. Kristol: “You also make the argument, as I recall, in at least one or two of those three dissents, you make more of a positive argument for the virtues, for the right, for . . . the ability of the community to draw certain boundaries around civility or civilized behavior almost, mostly in the case of the soldiers’ funerals or all of them really, the animal cruelty [and the] lying [case]. Those are all things a community would have a reasonable interest in discouraging, to say the least.”

Justice Alito: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. I would not make the same argument in a case . . . involving political speech. I thought all of them were cabined by specific rules, very reasonable rules. So in the animal cruelty case, I thought that was very similar to the rationale . . . against child pornography. Which is that you can’t produce child pornography without abusing a child and by stamping out child pornography, or trying to stamp out child pornography, you are attacking the underlying abuse – same thing [holds true] with these crush videos. You couldn’t stamp them out without preventing the creation and the circulation of the videos. . . . I think that kind of an argument is a dangerous argument when you’re talking about political speech. . . .”

The discussion ended with some brief additional comments about hate speech in Europe.

[ht: Tony Mauro]

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FAN 68.1 (First Amendment News) Wisconsin high court strikes down campaign finance laws in Walker dispute

As reported in the New York Times: “The Wisconsin Supreme Court on Thursday ruled that a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign cannot continue. The decision of the court ends the specter of a criminal investigation as Mr. Walker pursues the Republican nomination for president. Mr. Walker, who has won three elections for governor over the last five years including a recall challenge in 2012, officially announced his bid on Monday.”

Today the Wisconsin Supreme Court handed down in ruling in Wisconsin v. Peterson, et alJustice Michael Gableman wrote the lead opinion. Justice David T. Prosser wrote a long concurring opinion in which Chief Justice Patience Drake Roggensack joined as to Sections IV and V of the opinion, and Justices Annette Kingsland Ziegler and Michael Gableman joined as to Section IV of the opinion. Justice Shirley Abrahamson wrote an opinion concurring and dissenting in part. Justice Patrick Crooks likewise wrote an opinion concurring and dissenting in part. All tolled the various opinions came to 634 paragraphs. (Justice Ann Walsh Bradley did not participate).

The case concerned charges that Governor Scott Walker’s campaign team violated certain campaign finance laws during the 2012 recall elections by working in conjunction with dark money groups.

In relevant part, the Court declared:

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

It also added:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Over at the Election Law Blog, Professor Richard Hasen noted:

Today’s lengthy and contentious 4-2 ruling dividing the Court on partisan/ideological lines, from the Wisconsin Supreme Court ending the so-called “John Doe” probe is significant for three reasons: (1) it removes a cloud from the Scott Walker presidential campaign; (2) it guts, perhaps for years, the effectiveness of the state of Wisconsin’s campaign finance laws, and (3) it reenforces conservative beliefs that they are the victims of frightening harassment, a belief which is likely to lead conservative judges to strike more campaign laws.  The case also raises significant questions about judicial recusal which go unanswered, and provide one of two potential bases to seek U.S. Supreme Court review in this case. Still, high court review seems unlikely.

Check with the Election Law Blog as Professor Hasen has additional substantive comments on the case.


FAN 68 (First Amendment News) Court of Appeals for the Armed Forces to hear “true threats” case

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. — Justice Samuel Alito, concurring & dissenting in part in Elonis v. U.S. 

UnknownThe Court of Appeals for the Armed Forces (the highest military court) has just agreed to review a “true threats” case in United States v. Rapert (No. 15-0476/AR). The issue the five-member court will consider is “whether the finding of guilty .  . . for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of circumstances and in light of the Supreme Court’s decision in Elonis v. United States (2015).” 

As reported in CAAFLOG, there is no opinion in Rapert on the Army Court of Criminal Appeals’ website, which may be because that “court summarily affirmed the conviction.” Communicating a threat is an  Article 134 UCMJ, offense, which not only requires some misconduct (i.e., communicating a threat), but also that the conduct is either prejudicial to good order and discipline or service discrediting.

As  Zachary Spilman pointed out in his CAAFLOG post: “for [Eric L.] Rapert a footnote in a recent CAAF opinion looms large.” That opinion is United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) and the pertinent language in a footnote in that case is:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

 (ht: Jeffrey Barnum)

Update on Elonis on remand to 3rd Circuit: According to Ronald H. Levine, who argued the Elonis case in the Third Circuit, “the Third Circuit has not yet acted other than to recall its original mandate. Whether it will vacate and remand to the district court or seek briefing per the concurrence of Justice Alito is unknown.”

Headline: “Lawmakers want Internet sites to flag ‘terrorist activity’ to law enforcement”

Screen Shot 2015-07-14 at 1.35.09 PMA story in the Washington Post by Ellen Nakashima reports that “[s]ocial media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee. The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.”

“. . . It would not require companies to monitor their sites if they do not already do so, said a committee aide, who requested anonymity because the bill has not yet been filed. The measure applies to ‘electronic communication service providers,’ which includes e-mail services such as Google and Yahoo. . . .”

Senate Bill 1705: Intelligence Authorization Act for Fiscal Year 2016: The relevant provision of the proposed measure is Section 603: Requirement to report terrorist activities and the unlawful distribution of information relating to explosives.

Subsection (a) of section 603 concerns the duty to report and provides:

Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.

Subsection (b) of section 603 provides:

The Attorney General shall determine the appropriate authorities under subsection (a).

Subsection (c) of section 603 concerns facts and circumstances and provides:

The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.

Subsection (d) of section 603 concerns privacy protection and provides:

Nothing in this section may be construed to require an electronic communication service provider or a remote computing service provider—

(1) to monitor any user, subscriber, or customer of that provider; or

(2) to monitor the content of any communication of any person described in paragraph (1).

The ACLU’s Gabe Rottman said that the Senate “committee had secretly inserted a provision in a spending bill that would require social media companies to report posts about “any terrorist activity” to the government. The bill is hopelessly vague on what that means. That’s because it goes far beyond a reporting requirement for wrongful conduct—terrorist activity—and will invariably result in the reporting of speech about terrorism—including by activists and other peaceful people with forceful opinions.”

“In practice, he added, “were this to become law, websites will likely do a couple of things”:

  1. “First, they will overcorrect and start taking down content wholesale. They will monitor posts for keywords like ISIS or “don’t tread on me” (a libertarian slogan that some identify with white supremacist and anti-government ideology) and pull them. That will chill an enormous amount of online debate . . .”
  2. “Second, and perhaps worse, companies—faced with the proposal’s utter lack of guidance on what the law requires them to report—will apply it inconsistently. . . .”

(ht: Emma Llansó, Free Expression Project: See also Ms. Llansó’s “Intel Authorization Bill Would Turn Online Service Providers into Law Enforcement Watchdogs,”) 

10th Circuit rejects compelled speech & compelled silence claims in Little Sisters Case

Yesterday a majority of the judges of a Tenth Circuit three-judge panel rejected the compelled speech and compelled silence claims, among others, raised by the Appellants in Little Sisters of the Poor Home for the Aged v. Burwell. Judge Scott Matheson, Jr. wrote for the majority (joined by Judge Monroe G. McKay) with Judge Bobby R. Baldock writing in dissent, but on RFRA grounds.

“Plaintiffs, wrote Matheson, “contend the accommodation scheme violates the Free Speech Clause of the First Amendment . . .  by compelling them both to speak and remain silent . . . . . First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail.”

“To the extent such a claim requires government interference with the plaintiff’s own message, . . . . the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. . . .”

“We further reject the claim that the accommodation scheme compels Plaintiffs’ silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. . . . After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot.”

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