Tagged: Constitutional Law

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FAN 98 (First Amendment News) The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive?

Justice Scalia’s passing is a huge eventIlya Shapiro

America today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. — George Will 

It might be that . . . determined campaign finance reformers like me just got the opening [we] need. — Richard Hasen

Last week I listed Justice Antonin Scalia’s First Amendment free-expression opinions — majority, concurring, and dissenting. In light of the Justice’s passing, renewed attention is certain to focus on those First Amendment rulings in which the Roberts Court was divided by a 5-4 margin and in which Justice Scalia cast the deciding vote. Below is a list of the Court’s 5-4 rulings in which Justice Scalia was in the majority:

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

Hence, depending on the future makeup of the Court, the following categories of speech cases could be in doctrinal flux: government employee speech, student speech and various forms of campaign finance speech.

Though Holder v. Humanitarian Law Project (2010) was a 6-3 ruling (with Justice Scalia in the majority), Justice Stevens joined the conservative bloc. Since then he has been replaced by Justice Elena Kagan. If Justice Kagan were to join the dissenters in the case (Justices Ginsburg, Breyer & Sotomayor), that would leave a 4-4 split. Here, too, a new Justice could tilt the outcome in a future case.

The Public Employees Union-Fee Case & the Future of Abood

And then there is Friedrichs v. California Teachers Association, et al., which was argued last month. Recall the two issues raised in that case:

  1. Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and
  2. Whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
Justice Scalia

Justice Antonin Scalia

After oral arguments in the case, Adam Liptak noted that the “Supreme Court seemed poised on . . . to deliver a severe blow to organized labor. . . . [T]he court’s conservative majority seemed ready to say that forcing public workers to support unions they have declined to join violates the First Amendment. . . . The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile” during oral arguments in Friedrichs:

Here are some of Justice Scalia’s comments from those oral arguments:

  • “Mr. Carvin, is ­­ is it okay to force somebody to contribute to a cause that he does believe in?”
  • “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”
  • “Why do you think that the union would survive without these ­­ these fees charged to nonmembers of the union? Federal employee unions do not charge agency fees to nonmembers, and they to survive; indeed, they prosper. Why ­­ why is California different?”

In light of the likely 4-4 divide on the Court following Justice Scalia’s death, Friedrichs may either be summarily affirmed on rescheduled for oral argument at some unknown date.

The Future of the Roberts Court’s Campaign Finance Rulings

Professor Richard Hasen

Professor Richard Hasen

Writing in Politico, Professor Richard Hasen noted that “[a] lmost all of the important campaign finance decisions for a generation have been decided by a 5-4 majority on the Supreme Court. In some periods, the Court has been narrowly in favor of limits. More recently, the pendulum has swung to an absolutist view of the First Amendment, which sees most limits on money in politics as obstructions of free speech and thus unconstitutional.”

“His opposition to limits began in 1990,”Hasen continued,” when Scalia dissented from a Supreme Court decisionAustin v. Michigan Chamber of Commerce, allowing limits on how corporations can spend money in elections. He called the decision requiring corporations to use a political action committee for election ads “Orwellian,” and for the next 25 years he dissented and fought against Supreme Court decisions that allowed sensible limits on money in politics. Scalia finally got his way in the 2010 Citizens United case, which overturned Austin in a 5-4 decision and ushered in our current era . . .”

→ In another post, Professor Hasen also notes that “[o]ne of the first ways that Justice Scalia’s absence will be felt in Court decisions is on emergency motions and stay request which make its way to the Supreme Court on an expedited basis, what Prof. Will Baude calls the Supreme court’s ‘shadow docket.‘”

Student Speech After Morse v. Frederick

Greg Lukianoff

Greg Lukianoff

Shortly after the Court handed down its 5-4 ruling in Morse v. Frederick (2007), FIRE’s Greg Lukianoff wrote: “Even days after the opinion was handed down, it is difficult to know where to begin in dissecting the potential harm of the Morse v. Frederick opinion. One thing is clear to me, however: there is a word missing from the opinion that could have helped re-focus and clarify the case and might have helped convince the Court to avoid its risky adventure into new viewpoint-based restrictions on speech. That word is ‘joke.'” (June 29, 2017)

In light of Justice Scalia’s passing, Lukianoff has now “come to believe that even if it were decided last week, ​Fredrick would have prevailed on his free speech claim (not the QI claim, though) if only because of Robert’s evolution on freedom of speech. But now with Justice Scalia gone, I tend to think a future Court would simply ignore the opinion and if a case like it came up again they would be inclined to take the strong free speech position. But that, of course, depends on who replaces Scalia.”

Quote of the Month: Jeb Bush on Citizens United  

Despite being backed by the monumental Right to Rise super PAC, Jeb Bush said Monday he would “eliminate” the Supreme Court decision that paved the way for super PACs.”If I could do it all again I’d eliminate the Supreme Court ruling” Citizens United, Bush told CNN’s Dana Bash. “This is a ridiculous system we have now where you have campaigns that struggle to raise money directly and they can’t be held accountable for the spending of the super PAC that’s their affiliate.” — CNN, Feb. 8, 2016

Two Bills Introduced in N.H. to Protect Academic Freedom & Whistleblowers   Read More

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Senate 2012 Vote on Paul Watford

Here is the lineup of the current Senate Judiciary Committee (11 Republicans, 9 Democrats). He was confirmed on May 21, 2012 by a 61–34 vote.

Here is the Senate Vote on Paul Watford to be a Ninth Circuit Judge

Grouped By Vote Position

YEAs —61
Akaka (D-HI)
Alexander (R-TN)
Baucus (D-MT)
Begich (D-AK)
Bennet (D-CO)
Bingaman (D-NM)
Blumenthal (D-CT)
Boxer (D-CA)
Brown (D-OH)
Brown (R-MA)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Collins (R-ME)
Conrad (D-ND)
Coons (D-DE)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Graham (R-SC)
Hagan (D-NC)
Harkin (D-IA)
Inouye (D-HI)
Johnson (D-SD)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Kyl (R-AZ)
Landrieu (D-LA)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lugar (R-IN)
Manchin (D-WV)
McCain (R-AZ)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murkowski (R-AK)
Murray (D-WA)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Reed (D-RI)
Reid (D-NV)
Rockefeller (D-WV)
Sanders (I-VT)
Schumer (D-NY)
Shaheen (D-NH)
Snowe (R-ME)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)
NAYs —34
Ayotte (R-NH)
Barrasso (R-WY)
Blunt (R-MO)
Boozman (R-AR)
Burr (R-NC)
Chambliss (R-GA)
Coats (R-IN)
Coburn (R-OK)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
Enzi (R-WY)
Grassley (R-IA)
Hatch (R-UT)
Hoeven (R-ND)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Johnson (R-WI)
Lee (R-UT)
McConnell (R-KY)
Moran (R-KS)
Paul (R-KY)
Portman (R-OH)
Risch (R-ID)
Roberts (R-KS)
Rubio (R-FL)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Toomey (R-PA)
Wicker (R-MS)
Not Voting – 5
DeMint (R-SC)
Heller (R-NV)
Kirk (R-IL)
McCaskill (D-MO)
Vitter (R-LA)
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FAN 97.1 (First Amendment News) — Justice Scalia Dies — Free-Speech Legacy

Justice Scalia (1936-2016)

Justice Scalia (1936-2016)

Updated: 2/14/16: 6:50 a.m.

Justice Antonin Scalia died in Texas yesterday. Those of us who follow the Court are shaken by the news and extend our condolences to the Justice’s family. Chief Justice John Roberts described Justice Scalia as “an extraordinary individual and jurist, admired and treasured by his colleagues.”

*  * * *

During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

  1. Davenport v. Washington Educ. Association (2007) (9-0)
  2. United States v. Williams (2008) (7-2)
  3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
  4. Brown v. Entertainment Merchants Association (2011) (7-2)
  5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

  1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
  2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
  3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

  1. McCullen v. Coakley (2014) (9-0)
  2. Doe v. Reed (2010) (8-1)
  3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
  4. Citizens United v. Federal Election Commission (2010) (5-4)

During the Roberts Court era, Justice Scalia did not author any First Amendment free-expression majority opinions in cases where the vote 5-4.

Justice Scalia’s Pre-Roberts Court Era Opinions

Some of Justice Scalia’sFirst Amendment free-expression opinions in the pre-Roberts Court era include:

Majority Opinions

  1. Republican Party v. White (2002)
  2. Thomas v. Chicago Park Dist. (2002)
  3. Capitol Square Review & Advisory Bd. v. Pinette (1995)
  4. Lebron v. Nat’l R.R. Passenger Corp. (1995)
  5. R.A.V. v City of St. Paul (1992)
  6. Board of Trustees of State University of New York v. Fox (1989)

Separate Opinions

  1. City of Los Angeles v. Alameda Books, Inc. (2002) (concurring)
  2. Watchtower Bible & Tract Soc’y v. Stratton (2002) (concurring)
  3. Good News Club v. Milford Central School (2001) (concurring)
  4. Legal Service Corp. v. Velazquez (2001) (dissenting)
  5. United States v. Playboy Entertainment Group, Inc. (2000) (dissenting)
  6. City of Erie v. Pap’s A.M. (2000) (concurring)
  7. L.A. Police Dep’t. v. United Reporting Publ’g. Corp. (1999) (concurring)
  8. NEA v. Finley (1998) (concurring)
  9. Schenck v. Pro-Choice Network (1997) (concurring in part & dissenting in part)
  10. Bd. of County Comm’rs v. Umbehr (1996) (dissenting)
  11. 44 Liquormart, Inc. v. Rhode Island (1996) (concurring)
  12. Morse v. Republican Party of Virginia (1996) (dissenting)
  13. United States v. Aguilar (1995) (concurring & dissenting in part)
  14. McIntyre v. Ohio Elections Comm’n (1995) (dissenting)
  15. United States v. X Citement Video, Inc. (1994) (dissenting)
  16. Madsen v. Womens Health Center (1993) (concurring in the judgment in part & dissenting in part)
  17. Barnes v Glen Theatre, Inc (1991) (concurring)
  18. Austin v. Michigan Chamber of Commerce (1990) (dissenting)
  19. Rankin v. McPherson (1987) (dissenting)

 See also: Ollman v. Evans (D.C. Cir., 1984) (dissenting in part) and Community for Creative Non-Violence v. Watt (D.C. Cir. 1983) (dissenting).

 See also: FAN.7 — “Justice Scalia & the First Amendment” (March 19, 2014)

David Savage, “Scalia criticizes historic Supreme Court ruling on freedom of the press,” Los Angeles Times, April 18, 2014

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

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

                                 — Wendy Kaminer (Feb. 8, 2016)

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

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

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

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Workplans, Priorities & Fundraising

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

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

Some Dissension in the ACLU ranks

Wendy Kaminer

Wendy Kaminer

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

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

Harvey Silverglate

Harvey Silverglate

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

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

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

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

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

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

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

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

Open Invitation to Reply 

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

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

_____________________________

What Citizens United Did & Did Not Do  Read More

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

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

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

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

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

David O. Stewart, former Powell law clerk

David O. Stewart

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

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

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

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

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

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

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

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

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

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

Counsel for Plaintiff: Jeremy Chou

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

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

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

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

Missouri State lawmakers consider mandatory First Amendment classes

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

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

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

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

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

Campus Free-Speech Watch Read More

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

United States Supreme Court

BUCKLEY v. VALEO (1976)

No. 75-436

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

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

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

Introduction (9:00 a.m.)

Bradley Smith, Center for Competitive Politics

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

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

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

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

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

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

Lunch

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

Audio of oral arguments in Buckley here.

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

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

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

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

Prof. Teresa Buchanan

Prof. Teresa Buchanan

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

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

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

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

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

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

→ Causes of action alleged by Plaintiff are:

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

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

→ Professor Buchanan’s own account of her  case

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

→ Related New Stories 

  1. Peter Schmidt, “Fired LSU Professor’s Lawsuit Challenges Federal Title IX Guidance,” Chronicle of Higher Education, Jan. 21, 2016
  2. Charles Lussier, “LSU professor fired for using salty language in classroom claims she’s ‘witch hunt’ victim, plans suit,” The Advocate, June 27, 2015
  3. Ryan Buxon, “Fired LSU Professor Teresa Buchanan Says She Still Doesn’t Know What She Did Wrong,” Huffington Post, July 8, 2015 (video interview with Professor Buchanan)
  4. Colleen Flaherty, “Fired for Being Profane,” Inside Higher Ed, (AAUP alleges violations of academic freedom, due process in new report about tenured professor who was terminated by Louisiana State U for using inappropriate language) (see also here)
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FAN 93.2 (First Amendment News) SCOTUS Denies Review in Federal Contractors’ Political Contributions Case

In its orders for today, the Supreme Court declined to review Miller v. Federal Election CommissionThe issue in the case was whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.

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Oral Arguments: Today the Justices will hear oral arguments in Heffernan v. City of PatersonThe issue in the case is whether the First Amendment prohibits the government from demoting an employee based on a supervisor’s perception that the employee supports a political candidate.

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. Paterson, N.J. (see Howard Wasserman SCOTUSblog commentary here)

Review Denied

  1. Miller v. Federal Election Commission
  2. Sun-Times Media, LLC v. Dahlstrom
  3. Rubin v. Padilla
  4. Hines v. Alldredge
  5. Yamada v. Snipes
  6. Center for Competitive Politics v. Harris
  7. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Town of Mocksville v. Hunter
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is scheduled for Friday, January 22, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

 

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FAN 93.1 (First Amendment News) Ira Glasser on Free Speech & “Trendy Liberals”

The following comments were sent to me by Ira Glasser in response to the lead item in FAN 93: “What’s Wrong with the First Amendment?” — Steven Shiffrin’s Book Coming This Summer (Jan. 13, 2016). Among other things, Mr. Glasser was the executive director of the American Civil Liberties Union from 1978 to 2001. I asked Mr. Glasser if he would share his comments with our readers; he kindly agreed.

One additional point: FAN’s mission is both to share news and (from time to time) to provide a forum for spirited and informed dialogue. It is in that spirit that Mr. Glasser’s comments are offered up for your consideration. — RKLC    

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Ira Glasser

Ira Glasser

Thanks for your preview of Professor Steven Shiffrin’s forthcoming book, What’s Wrong with the First Amendment (Cambridge University Press, summer 2016).

That we have a deconstruction of the First Amendment from the “liberal” side of the political spectrum should come as no surprise: The Venn diagram of “liberals” and “civil libertarians” has always had a smaller overlap, a smaller common ground than widely assumed. In general, they have been distinct sets of beliefs, often inaccurately conflated in the warm bath of political labels.

Most liberals have always favored one exception or another to their support of free speech, and most Americans, including most people who regard themselves as conservative, have always vigorously supported free speech, as long as it was theirs, or that of folks whose views they supported.

What those who supported the First Amendment rights of the self-styled neo-Nazis in Skokie (despite hating everything they said or represented) understood is that there was no way to support the ordinances used to restrict their speech without also inviting and legitimizing the use of similar, even identical ordinances by Southern towns against Martin Luther King, Jr. and his colleagues or against anti-Vietnam war protesters in Manhattan. In fact, such ordinances were so used against both.

Those “liberals” who now question whether the First Amendment should apply to speech they hate, or which causes them “emotional distress,” seem to believe that because they are clever enough to imagine doctrinal distinctions between certain speech content that such distinctions can hold true in the real world in which such decisions are politically made, and by “politically” I include the judiciary.

Sample Current Headlines 

Is the Left Killing Free Speech?” (Radio West, Dec. 18, 2015)

Freedom of Speech More Unwelcome Among Liberal Students, Faculty” (Daily Caller, Nov. 22, 2015)

Why Do Liberals Hate Free Speech?” (Washington University Political Review, Oct. 12, 2015)

The Anti-Free-Speech Movement at UCLA” (The Atlantic, Oct. 15, 2015)

The critical question about such distinctions is always who decides? Smart people can always make analytic distinctions inside their heads, and construct defensible justifications for their distinctions. But who shall decide how to apply them in the real world? It will always be the government. So who, in fact, will decide?

Prof. Steven Shiffrin

Prof. Steven Shiffrin

Law professors intoxicated by their own cleverness seem always either to ignore that question or implicitly assume it will be them, or people like them, when in fact it will most often, or often enough, be people like Joe McCarthy, Richard Nixon, Ronald Reagan, Dick Cheney, Rudy Giuliani and Jesse Helms.

What causes Professor Shiffrin emotional distress may be one thing, but what causes Richard Nixon or Rudy Giuliani emotional distress will be, and actually has been, quite different. And it will be they, not Professor Shiffrin, who will be in a position to decide which speech to permit, and which to prohibit under that vague and necessarily subjective standard.  And ditto many, if not most, judges.

Not to mention the tendency of free speech believers whose support for free speech when they are not in office is often much diminished once they have political power. Take John Adams, for example, and even Thomas Jefferson, both of whom proved to be better civil libertarians and free speech advocates when they were not president than when they were.

Not to mention either the parade of presidents of both parties who have without exception supported and maintained the growth of legalized secrecy – promiscuously overbroad classified information – as a way of preventing free speech and democratic debate by selectively removing information essential to that debate, and then criminalizing its disclosure (e.g., Daniel Ellsberg, Edward Snowden). I have not seen many law professors or judges construct a First Amendment theory to remedy that problem.

As you say, we will have to await Professor Shiffrin’s book before we have answers. But I will not be surprised if he, implicitly if not explicitly, rests his thesis on the premise that wise folks like him will make and enforce the additional legal distinctions he favors between presumptively beneficial and presumptively harmful speech.

Nor will I be surprised if Professor Shiffrin’s book does not adequately come to grips with the problem of how such “balancing” standards as he may recommend, establishing new limits on speech, will be interpreted and enforced by those who have political power against those who do not.

Broadening standards for restricting speech, and proposing new criteria to balance against the right to freedom of speech that does not take such considerations into account is a conceit that in practice will endanger freedom of speech and the dissent it is intended to protect. As the pamphleteers of the founding generation knew, rights, including rights of dissent, are always fragile and vulnerable, while power is voracious, relentless, ever expanding. And given more grounds to restrict speech, power will take them. If that is at the heart of Professor Shiffrin’s theory, it will not be the first time such a conceit lies at the foundation of a theory of benevolent censorship: it goes back to Plato.

This theory continues to gain ground among liberals. As for the ACLU, despite its continued strong advocacy of free speech in areas like national security, I note in passing that in the areas where speech comes into conflict with other causes the ACLU justly supports (like equality rights and anti-discrimination on the basis of skin color, gender and sexual orientation), its vigorous advocacy for content-neutral free speech rights has diminished as the organization has transformed itself incrementally but to a significant extent from a uniquely civil liberties group to a trendy liberal interest group – not the same thing.

See also

 FAN 49: “ACLU “2015 Workplan” sets out narrow range of First Amendment Activities” (Feb. 25, 2015), and FAN 50: “ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds” (March 4, 2015)

Wendy Kaminer, “The American Liberal Liberties Union,” Wall St. Journal, May 23, 2007

 Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case & the risks of Freedom (1979)

 David Goldberger, “Skokie: The First Amendment under Attack by Its Friends,” Mercer Law Review (1978)