Tagged: Constitutional Law

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

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

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

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

Nathan Kellum is the counsel of record for the Petitioner.

Judge Jerome Holmes

Judge Jerome Holmes

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

Judge Carolyn McHugh

Judge Carolyn McHugh

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

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

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

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

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

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

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

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

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

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

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

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

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

Idaho A.G. to Appeal “Ag-Gag” Ruling

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

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

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

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

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

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

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

11th Circuit Strikes Down City Tattooing Law

& the words were made in flesh

& the words were made in flesh

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

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

. . . .

Judge Jill Pryor

Judge Jill Pryor

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

Judges Stanley Marcus and William Pryor joined the opinion.

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

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

Campus Free-Speech Watch

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

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

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

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

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

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

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

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

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

Forthcoming Scholarly Articles

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

Notable Blog Posts 

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

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

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

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

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

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

News, Op-eds & Blog Posts

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

The Court’s 2015-2016 First Amendment Docket

Read More

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

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

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

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

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

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

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

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

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

MonumentalMobile Monument to the First Amendment (Thomas Jefferson Center)

The First Amendment & The Best of 2015

Best Supreme Court opinion: Reed v. Town of Gilbert

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

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

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

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

Best First Amendment champions: Megan Kelly and Tim Tai

 Best group defending First Amendment rights: FIRE

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

 Best speech: Floyd Abrams, “Liberty is Liberty

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

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

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

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

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

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

→ FAN Posts for 2015 ←  Read More

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FAN 90 (First Amendment News) Law Professors Urge Justices to Honor Stare Decisis in Union 1-A case

Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. — John Roberts (Sept.13, 2005)

Andrew Pincus

Andrew Pincus

“A review of this Court’s decisions over the last 75 years—from 1940 through 2015— reveals that the Court has expressly overruled only ninety-one constitutional precedents, or slightly more than one case per Term. And when the Court does overrule a precedent, it typically—in 57 percent of the cases—acts unanimously or nearly-unanimously, with two or fewer Justices in dissent. In only twenty-one cases (23 percent) did a bare majority of the Court overrule a constitutional precedent.”

Thus did Andrew Pincus argue in an amicus brief he filed in Friedrichs v. California Teachers Association, et al.The brief was submitted on behalf of  four constitutional scholars in support of the Respondents. The professors are:

  1. Walter E. Dellinger III, Douglas B. Maggs Professor Emeritus of Law, Duke Law School
  2. Michael H. Gottesman, Professor of Law, Georgetown University Law Center
  3. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law, and
  4. David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School.
Professor David Strauss

Professor David Strauss

In urging the Court not to overrule the unanimous judgment in Abood v. Detroit Board of Education (1977), Mr. Pincus and the law professors offer five reasons to support the Court’s invocation of stare decisis: 

  1. First, “overruling Abood will significantly disrupt settled legal rules in related areas. . . .Because the legal principle underlying Pickering and Abood is essentially identical, overruling Abood would undermine the more relaxed First Amendment standards governing government regulation of employee speech applied in Pickering and its progeny. . . . Overruling Abood . . . would lead inevitably to significantly greater limitations on government regulation of employee speech in the workplace.”
  2. “Second, Abood is a forty year-old precedent decided unanimously and reaffirmed multiple times by a unanimous Court. It has been applied consistently in the government employee context and relied upon by the Court to resolve First Amendment questions in related contexts involving government restrictions on associational interests.”
  3. “Third, Abood has created significant reliance interests. Twenty-three States and the District of Columbia have enacted statutes in reliance on this Court’s decision—and not just those statutes, but these States’ entire collective bargaining regime, would have to be revised if Abood were overruled.”
  4. “Fourth, no changes in relevant facts or in society or in legal principles support overruling Abood. The decision’s basic premise—that the government’s vital interest in structuring its workforce permits gov- ernment as an employer to take actions that would be unconstitutional in other contexts—has been con- sistently reaffirmed by this Court in a variety of contexts,” and
  5. “Fifth, the Abood standard is workable, as the de cisions of this Court and the lower courts make clear.”

Additionally, they argue that

overruling Abood would likely trigger an avalanche of lawsuits against government employers and unions seeking agency fee refunds. That has already happened in the wake of this Court’s decision in Harris: plaintiffs have filed class actions in a number of states, including New York, Oregon, and Washington. One suit seeks the return of over $20 million in agency-shop fees paid by childcare workers.

Will such arguments stay the reversing hand of the same Roberts Court that set aside stare decisis in cases such as Citizens United v. FEC (2010), McDonald v. Chicago (2010), Gonzales v. Carhart (2007), and Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007)? In all of those cases, among others, existing precedents were overruled by a bare majority of the Court.

→ Even if the Court should decline to formally overrule Abood, might it not do so functionally, by way of “stealth overruling“? After all, that tactic has been to such good use in the Miranda line of cases that even Chief Justice William Rehnquist (a longtime Miranda critic) declined to overrule the landmark Warren Court precedent when he had the chance to do so.

 The other Counsel for the Amici are: Eugene Fidell (Yale Law School Supreme Court Clinic), Charles Rothfeld, Michael Kimberly, and Paul Hughes (all of Mayer Brown).

→ See also FAN 28 (First Amendment News) — “The Demise of Stare Decisis?” (Aug. 20, 2014)

[ht: Tony Mauro]

Court Strikes Down Trademark Law on First Amendment Grounds Read More

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FAN 89 (First Amendment News) Corn-Revere Brings First Amendment Challenge Against “Stop Advertising Victims of Exploitation” Act

Fresh from his victory in Backpage.com v. Dart (7th Cir., Nov. 30, 2015), noted First Amendment lawyer Robert Corn-Revere recently filed a complaint in the U.S. District Court for the District of Columbia in the case of Backpage.com v. Lynch. The complaint for declaratory and injunctive relief alleges:

  1. “This is an action challenging the constitutionality of the “Stop Advertising Victims of Exploitation” Act (the “SAVE Act”), which amended 18 U.S.C. § 1591, and was enacted as part of Public Law 114-22 on May 29, 2015. The Act added the term “advertises” among the predicate acts for criminal sex trafficking in Section 1591, punishable by prison terms ranging from ten years to life.”
  2. “Statements of Congressional sponsors and others in support of the SAVE Act and prior bills that led to the Act emphasized their intent to target the classified advertising website Backpage.com. Members of Congress and others have assailed Backpage.com for many years, despite the website’s extensive efforts to prevent, screen and block improper ads from users. Three states enacted criminal statutes to censor adult ads on Backpage.com, but  federal courts struck down all three laws, holding that the laws would have chilled First Amendment protected speech, were unconstitutionally vague and overbroad, lacked sufficient scienter requirements, and could not withstand strict scrutiny.”
  3. “Provisions of the SAVE Act targeting websites and others that publish or disseminate speech are also unconstitutionally vague, overbroad and infringe First Amendment rights for similar reasons. . . .”
  4. “[I]f the SAVE Act were interpreted to permit criminal liability if a website receives an allegation that a post concerns sex trafficking, this would create a notice- and-takedown regime that would impermissibly chill speech. Contrary to statements of some of the SAVE Act’s Congressional supporters, criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking. Given the enormous volume of third-party content they receive and disseminate every day, websites cannot possibly review every post to guarantee nothing is unlawful. Although it is unclear what the SAVE Act means, if it imposes notice-based criminal liability, then the Act is also unconstitutional because it would permit a “heckler’s veto” contrary to Reno v. ACLU, 521 U.S. 844 (1997).”
  5. “On the whole, the SAVE Act fails to give websites, publishers and others a reasonable opportunity to know what conduct is prohibited and what is permitted. With all its vagaries, the Act could allow ad hoc and subjective interpretations by prosecutors with attendant dangers of arbitrary and discriminatory application. And, given the severe penalties under the Act—up to life imprisonment—the risks and likely speech-chilling effect of the law is also severe. As a result, the Court should declare the SAVE Act unconstitutional and enjoin its enforcement.”

Ronald London and Lisa B. Zycherman were also on the complaint as counsel for the Plaintiff.

Former Correction Officials & Law Professors Weigh in on 11th Circuit Prison News Case Read More

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FAN 88.1 (First Amendment News) Court denies review in newspaper case about publishing truthful information disclosing police officers’ personal information

Today the Supreme Court denied review in Sun-Times Media, LLC v. DahlstromThe issues in the case were:

  1. Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
  2. whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
  3. whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
  4. whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”

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)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al.
  2. January 19, 2016:  Heffernan v. Paterson, N.J.

Review Denied

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

Pending Petitions*

  1. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  2. Bell v. Itawamba County School Board 
  3. Electronic Arts, Inc. v. Davis
  4. Miller v. Federal Election Commission 
  5. Rubin v. Padilla
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority

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 January 8, 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 88 (First Amendment News) Paul Clement Files Brief in 11th Circuit Prison News Case

[T]here is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners. The question here, as it has been in our previous First Amendment cases in this area, is what standard of review this Court should apply to prison regulations limiting that access. — Justice Harry Blackmun, Thornburgh v. Abbott 

Paul Clement

Paul Clement

Late Monday evening Paul Clement filed a brief on behalf of Prison Legal News, a project of the Human Rights Defense Center. The case is Prison Legal News v. Secretary, Department of Florida Corrections. Mr. Clement is counsel of record on behalf of the Prison Legal News. The controversy in the case centers around this: “The Florida Department of Corrections (FDOC), alone among the fifty States, the federal Bureau of Prisons (BOP), and every county jail in the country, is violating Prison Legal News’ (PLN) First Amendment rights by impounding every issue of its magazine based on the publication’s advertisements. This broad restriction on PLN’s free speech rights is neither logical nor necessary.” Thus did Mr. Clement begin his brief. He then stressed that “there is no evidence that those advertisements have suddenly become a security threat. There is simply no logical fit between the FDOC’s renewed censorial zeal and the current evidence that would justify its alone-in-the-nation censorship of a publication uniquely focused on the plights and rights of prisoners.”

Screen Shot 2015-12-08 at 9.57.17 AM→ PLN also made a Due Process argument: “Exacerbating its infringement on PLN’s free speech rights, the FDOC has also violated PLN’s due process rights, as the District Court correctly held. When a publisher’s First Amendment rights are restricted by prison officials, due process requires notice and a meaningful opportunity to challenge the prison’s censorship decision. But the FDOC has regularly failed to notify PLN of its decisions.”

 Equitable EstoppelPLN maintains that FDOC did this exact same thing about 13 years ago in 2003 whereafter PLN sued. FDOC then abandoned its censorial practices and adopted a new version of the rule  and then argued (successfully) to both the district court and the Eleventh Circuit that the case was moot.

The District Court held that the FDOC’s expansive censorship of PLN was logically connected to its security concerns. On the due process claim, however, it ruled that the FDOC regularly failed to notify PLN of impoundment and often failed to adequately explain the basis for impoundment. Because the FDOC would likely continue to deprive PLN of its due process rights, the District Court entered an injunction requiring the FDOC to modify its practices.

On Appeal, PLN argues that it should prevail based  on the holdings in Turner v. Safely (1987) and Thornburgh v. Abbott (1989), which set forth a four-part test for evaluating a prison system’s infringement of a publisher’s First Amendment rights.

Four First Amendment Arguments 

  1. Turner & Thornburgh satisfied: “The First Amendment question in this case is not whether the FDOC’s regulations are legitimate in the abstract; instead, the Court must decide whether the FDOC’s specific application of those rules violates PLN’s specific constitutional rights.” PLN argues that “the First Amendment applies within prison walls” and that the four-prong test of Turner and Thornburgh have been satisfied.
  2. No logical fit/rational basis for censorship: “The FDOC’s application of the Reading Material Rule to censor PLN is not logically related to its concerns with the relevant advertisements. The FDOC itself has previously told this Court that the exact same type of advertising content in Prison Legal News does not pose a material security threat, and there is no evidence to suggest that any new threat has arisen—nor that any threat existed in the 13 years before the FDOC began censoring PLN. The FDOC is thus barred from arguing otherwise now.” PLN thus argues that there “is no rational basis for the FDOC’s renewed censorship of PLN.”
  3. No meaningful alternatives: “PLN has no alternative means of exercising its free speech rights, and accommodating those rights would have no significant impact on Florida prisons.”
  4. Unnecessary censorship:” The FDOC’s application of its rule is an exaggerated response to its security concerns. . . . [W]hen every other well-run prison and jail in the country sees fit to allow PLN to circulate with the precise same advertisements, the evidence of an exaggerated response is overwhelming. After all, this is not a situation where Florida faces some unique dynamic that might justify its alone-in-the-nation policy.”

“In the end,” Mr. Clement maintained, “the FDOC’s censorship of PLN rests on no more than its unsupported say-so. It previously disclaimed any security concerns with PLN’s advertising content. It has offered no reason to justify its dramatic reversal. Any security concerns it does have are unrelated to the specific advertisements PLN runs in its publications. No other state prison system, nor county jail, nor the federal government considers it necessary to censor PLN.”

 Other lawyers on the brief included Michael McGinley (Bancroft), Randall Berg and Dante Trevisani (Florida Justice Institute), Lance Weber and Sabarish Neelakanta (Human Rights Defense Center), and Benjamin Stevenson and Nancy Gbana Abudu (ACLU Florida).

Center for Competitive Politics 10th Anniversary

Bradley Smith & Sen. Mitch McConnell

Bradley Smith & Sen. Mitch McConnell (credit:CCP)

December 2, 2015, Mayflower Hotel, Washington, DC: The occasion was a gala to celebrate the tenth anniversary of the Center for Competitive Politics. The featured speakers were Senator Mitch McConnell (R-KY) and columnist George Will. Some of those attending the event were: Dan BackerJan Baran, Michael Boos, Bobby  Burchfield, Robert  Corn-Revere, Allyson HoRobert LenhardShaun  McCutcheon, and Roger Pilon.

Bradley A. Smith, the Center’s Chairman and Founder, kicked off the event with some opening remarks. “It’s easy for those of us who believe in the First Amendment,” he said, “to feel that we’re constantly on the defensive.” He then added: “If you feel that we are on the defensive these days, think of how those poor saps in the speech squelching community must feel. In the last ten years, they’ve seen Citizens United; they’ve watched as SpeechNow.org has allowed citizens to pool their resources to speak, crushing their ability to control the debate. They’ve seen a series of strong FEC Commissioners, several of whom are here tonight, who take the law and the First Amendment seriously and who do not look for opportunities to expand their power; they’ve seen the Supreme Court gut their efforts to force candidates into rigged systems of government financed campaigns; they’ve watched President Obama effectively scuttle tax financing of presidential campaigns; they’ve seen the repeal of tax-financed campaigns in at least 4 states, the abolition of tax-funded conventions, a giant increase in the federal party contribution limits, and, finally, their efforts to expand compulsory disclosure to include private speech about issues defeated repeatedly in Congress and in many states. They’ve seen nearly 40% of those states that have limits on contributions raise those limits since 2010, in response to the pressure placed on candidates by Super PACs.”

Whether they are on the defensive or not, the fact is that the Center is most active in the campaign finance area — currently, it has 11 cases in litigation, seven of which involve challenges to disclosure laws (see here — list on link = incomplete).

Sen. Mitch McConnell (credit: CCP)

Sen. Mitch McConnell (credit: CCP)

Mr. Smith also presented Senator McConnell with the Center’s first James Madison Freedom of Speech award. Here are a few snippets of the Senator’s remarks:

— “If you can draw the rules of the game, you’re likely to win.” [The reference was to congressional incumbents.]

— “There is nothing more gratifying than Citizens United.”

— “I’m pretty happy where we are now. . . . Liberals are going berserk.”

— “Liberals have taken over eight of the eleven circuits. There is nothing they would like better than to shut us down.”

— “We’re going to try in the omnibus appropriations bill to eliminate Colorado II.”  [The reference is to FEC v. Colorado Republican Federal Campaign Committee (2001)]

See David Keating & Bradley Smith, “The Freedom Caucus Objects to Political Free Speech,” Wall Street Journal, December 6, 2015 Read More

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The Evils of Caretaker Tyranny – Reflections on Catherine Ross’ “Lessons in Censorship”

It is the mass psychology of our times: victimization. It is ubiquitous. It is an affliction of desire, one suffered by anyone who dons a victim’s badge – liberals and conservatives, men and women alike. It is fiction masquerading as fact. It feigns suffering in the hope of attaining sympathy. It is the triumph of desired perception over verifiable reason. It is group-thought, which means it bears little relation to actual thinking. And it trades in a portrayal of the individual not as self-determined but rather as group-manipulated.

“Victims” can be abled or disabled, religious or non-religious, poor or well to do, young or old, or those on the ideological Left or Right. They are all “survivors”; they all seek our sympathy. True to the supposed affliction, the resulting sympathy is either disingenuous or delusional, if only because what prompted it was either disingenuous or delusional.

This trend towards victimization diminishes our capacity to feel real sympathy for real victims. Yes, rape is real; true, violence is deplorable; and, of course, actual threats are never to be tolerated. Any civilized society  worthy of the name must roundly condemn such acts. But when the demands for our sympathy or outrage become unthinking, when what prompts them is political ideology, something is lost. That something is authenticity, which alone can summon the true habits of the heart. Being sensitive, however, does not mean being sensational. We do not need to close our minds in order to open our hearts.

caretaker-85772758The mantra of victimization invites caretaker tyranny. In such a culture, these caretakers demand protection against the forces of evil, not real evil but one fabricated to suit the mindset of helplessness. In a world populated by the helpless, the forces of good must take action. For example, at Brown University a “safe space” was created to comfort any college student victimized by the trauma of a campus debate on sexual assault. But safe houses are not enough; there must be sanctions. Rules must be set in place to assure an atmosphere of compulsory calm. Tongues must be silenced; books must be cleansed; and events must be scrubbed to prevent anything that might trigger any kind of offense. George Will recently tagged it “sensitivity censorship.” True, but it is censorship in the service of a false sensitivity, one divorced from reality.

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41Sa-0L-7ML._SX329_BO1,204,203,200_And that is where the First Amendment comes into play, which brings me to Catherine RossLessons in Censorship: How Schools & Courts Subvert Students First Amendment Rights (Harvard University Press, 2015). It is a sobering book . . . for those who wish to be sober. It is a mind-opening book . . . for those willing to be open-minded. It is a revealing book about judicially sanctioned censorship . . . for those willing to listen. It is a plan for instructive action . . . for those willing to act. And it is a call to liberty . . . for those wishing to be free.

When reading this well-argued and well-researched book, what struck me most was this: When it comes to student speech, the conservatism of the Burger, Rehnquist and Roberts Courts helped to inform the censorship championed by the cheerleaders of victimization. Ever since the Warren Court’s 1969 Tinker ruling, the cause of student free speech has been a losing one. Merely witness the adverse rulings in Bethel School District v. Fraser (Burger Court: 1986), Hazelwood School District v. Kuhlmeier (Rehnquist Court: 1988), and Morse v. Frederick (Roberts Court: 2007), and all of the countless lower cases (documented in Ross’ book) that have followed suit.

Point of Clarification: The cases just mentioned all involved high school students, whereas my earlier reference to the Brown University mentality involved college students. And while courts have regularly sanctioned censorship at the secondary level, censorship at the college level has been routinely disapproved by lower courts thanks to litigation brought by FIRE, the ACLU, the Student Press Law Center, and the Center for Campus Free Speech.

That said, the thread that weaves its way through the fabric of both lines of cases is this: The Supreme Court’s post-Tinker rulings – save for Rosenberger v. University of Virginia (a 1995 religious funding college campus case) – suggest two things. First, the authority of school officials to regulate student speech is vast. Second, any asserted justification for censorship will be deemed credible. Thus understood, the governing norm for school administrators is one spawned by what might be called protective paternalism (or maternalism, if you prefer). Such paters protect everyone; they are the caretakers of our time. Such paternalism, rooted in the secondary school cases, has carried over into the college realm and informs much of the administrative thinking there. The mindset of these school principles has become that of college administrators. In the process, that same kind of thinking shapes the minds of the impressionable young.

What is lost in the mix is education in what it means to live in a society governed by the principle of free speech. Schools, as Professor Ross reminds us, are “training grounds for citizenship,” places where the value of free speech may be taught as a “counterweight to the voices demanding censorship of ideas that might upset some people.” Such education is neither education in victimization nor education in subservience. Rather it is education in toleration and liberty. To be sure, real abuses of freedom betray real freedom. Civility is important. Still, as Ross counsels us time and again, liberty must not be held in perpetual pause by school officials either enamored with their power or charmed by the idea of being caretakers of pseudo victims.

Turn the pages of Lessons in Censorship and you will discover what it means for students to think freely and how courts have fashioned baseless arguments designed to squelch such thinking. Open this book and you will be introduced to the kind of nuance (buttressed by considerable research and documentation) that grasps “the importance of keeping discipline for student expression within constitutional limits.” Consider the points made in this book concerning insults, hate speech, and bullying, and you will walk away with a more informed idea of what kinds of speech do real harm (and thus may be regulated) versus the kinds of speech that do not (and should thus be tolerated). Take heed of what is set forth in this book about school officials extending their disciplinary powers off campus so as to become would-be parents, and you will fear for freedom. There is, to be sure, more, but that is for you, the reader, to discover.

Lessons in Censorship is a book that should be read and discussed by school officials at all levels of education. It is a work that should be poured over by school board officials and lawyers who represent school districts and college campuses. And its message should carry over into the memoranda and briefs that lawyers file to inform judges. It is too important a book to be left to academics unless they use it as a teaching tool in educating students about the importance of free-speech liberty.

To return to my beginning: The cult of victimization, so prevalent on our college campuses, is grounded in a system of secondary education alienated from the principles of free speech. It takes leave from the the very principles that teach self-reliance, toleration, and the importance to meet, expose, and contest every brand of bigotry designed to diminish our humanity.

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FAN 87 (First Amendment News) Sunstein Urges Revising Holmes’s C&P Test in Our Terrorist Times

It is likely, perhaps inevitable, that hateful and violent messages carried over the airwaves and the Internet will someday, somewhere, be responsible for acts of violence. This is simply a statement of probability; it is not an excuse for violence. Is that probability grounds for restricting such speech? Would restrictions on speech advocating violence or showing how to engage in violent acts be acceptable under the First Amendment? — Cass Sunstein (1995)

He is the author of Democracy and the Problem of Free Speech (1995) and Why Societies Need Dissent (2005) in addition to several scholarly articles on subjects such as “The Future of Free Speech” (2002), “The First Amendment in Cyberspace” (1995), “Half-Truths of the First Amendment” (1993), “Free Speech Now” (1992,) “Low Value Speech Revisited” (1988), and “Pornography and the First Amendment” (1986).” And in 2014 he wrote an op-ed for The New Republic expressing reservations about New York Times Co. v. Sullivan (1964). Now he has his analytical sights set on Justice Holmes’s clear and present danger test.

He is, of course, Professor Cass Sunstein. In a recent op-ed he floated some new ideas about free speech in  terrorist times. Here are a few excerpts (with headings I inserted):

Professor Cass Sunstein

Professor Cass Sunstein

Revisit the Clear & Present Danger Test?

“The Intensifying focus on terrorism, and on Islamic State in particular, poses a fresh challenge to the greatest American contribution to the theory and practice of free speech: the clear and present danger test. In both the United States and Europe, it’s worth asking whether that test may be ripe for reconsideration. . . .”

“As the Court ruled in 1925, there would be no protection of speech whose ‘natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.; Under this test, of course, terrorist recruitment activity would not be protected.”

“As late as 1951, the Supreme Court allowed regulation of speech even when the danger was neither clear nor present. In Dennis v. United States, the Court upheld a conviction of people trying to organize the Communist Party to overthrow the U.S. government. . . .”

Rejecting the Clear & Present Danger Test

“One of the greatest and most influential judges in U.S. history, with the unlikely name of Learned Hand, also rejected the clear and present danger test. He believed that the free speech principle didn’t protect explicit or direct incitement to violence, even if no harm was imminent. If you’re merely agitating for change, the government cannot proceed against you, but if you’re expressly inciting people to commit murder you aren’t protected by the Constitution. . . .”

“True, there may be value in even the most extreme and hateful forms of speech: At the very least, people can learn what other people believe. But it’s fair to ask whether that benefit might be dwarfed by the cost, if those forms of speech create a genuine risk of large numbers of deaths. Hand himself argued that his narrow definition of incitement avoids subjectivity and overreach, and that it can’t be abused by the government to silence dissenters and unpopular causes. . .”

Proposed New Test

“To minimize the danger to free speech, it might be best to combine Hand’s approach with a form of balancing: If (and only if) people are explicitly inciting violence, perhaps their speech doesn’t deserve protection when (and only when) it produces a genuine risk to public safety, whether imminent or not. That approach would essentially retain the high level of protection that is now given to political speech and dissent of all kinds. . . .”

Note: Some of the ideas mentioned above were discussed earlier in Professor Sunstein’s book Laws of Fear: Beyond the Precautionary Principle (2005) pp. 219-223 and in his 1995 American Prospect essay titled “Is Violent Speech a Right?

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→ See also Ronald Collins, “Can We Tolerate Tolerance?,” Concurring Opinions, November 2, 2015

Forthcoming Book on the Press, the Supreme Court & Sedition Act of 1798

Wendell Bird

Wendell Bird

Wendell Bird is a practicing lawyer who in 2012 received a PhD in legal history from Oxford University. He has been a visiting scholar at Emory University School of Law (2012 to present). His doctoral thesis has now evolved into a forthcoming book to be released this February. Here is a blurb from his publisher:

The early Supreme Court justices wrestled with how much press and speech is protected by freedoms of press and speech, before and under the First Amendment, and with whether the Sedition Act of 1798 violated those freedoms. This book discusses the twelve Supreme Court justices before John Marshall, their views of liberties of press and speech, and the Sedition Act prosecutions over which some of them presided.

The book begins with the views of the pre-Marshall justices about freedoms of press and speech, before the struggle over the Sedition Act. It finds that their understanding was strikingly more expansive than the narrow definition of Sir William Blackstone, which is usually assumed to have dominated the period. Not one justice of the Supreme Court adopted that narrow definition before 1798, and all expressed strong commitments to those freedoms.

The book then discusses the views of the early Supreme Court justices about freedoms of press and speech during the national controversy over the Sedition Act of 1798 and its constitutionality. It finds that, though several of the justices presided over Sedition Act trials, the early justices divided almost evenly over that issue with an unrecognized half opposing its constitutionality, rather than unanimously supporting the Act as is generally assumed. The book similarly reassesses the Federalist party itself, and finds that an unrecognized minority also challenged the constitutionality of the Sedition Act and the narrow Blackstone approach during 1798-1801, and that an unrecognized minority of the other states did as well in considering the Virginia and Kentucky Resolutions.

The book summarizes the recognized fourteen prosecutions of newspaper editors and other opposition members under the Sedition Act of 1798. It sheds new light on the recognized cases by identifying and confirming twenty-two additional Sedition Act prosecutions.

At each of these steps, this book challenges conventional views in existing histories of the early republic and of the early Supreme Court justices.

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 See also Mary M. Cronin, An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America (Southern Illinois University Press, March 29, 2016)

Court allows for divided argument & extended time in labor union First Amendment case Read More

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FAN 86.2 (First Amendment News) “Vulgar is not violent” — Posner enjoins sheriff in online classified advertising case

Judge Richard Posner

Judge Richard Posner

Judge Richard Posner was again at his best in Backpage.com v. Dart. It took him but seventeen days after oral argument in the case (to say he was forceful would be an understatement ) to issue his opinion for the Court.

In true Posnerian form the opinion was blunt (“The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation”), skeptical of dubious claims (“[A]s explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States”), and not prudish in its discussion of adult sex (“One ad in the category “dom & fetish” is for the services of a “professional dominatrix”— a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix” [link omitted]).

Moreover, Posner is not one to blindly accept convenient rationalizations made by counsel on appeal: “At oral argument Dart’s attorney reminded us that ‘nowhere in Sheriff Dart’s letter does it say that he thought that they [the credit card companies] were accomplices to a crime.’ But the letter implies that they are—and it was the letter that prompted the credit card companies to abandon Backpage. They are unlikely to reconsider on the basis of a lawyer’s statement at oral argument, months after the initial threat.”

And then there was the no-nonsense injunction he issued in the case:

Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.

Sheriff Dart shall immediately upon receipt of this order transmit a copy electronically to Visa and MasterCard and all other recipients of his June 29, 2015, letter (includ- ing therefore the directors of and investors in Visa and MasterCard), as well as to the Chief Inspector of the United States Postal Service.

Backpage.com shall not be required to post a security bond.

There is more, much more, but read the opinion.

Robert Corn-Revere represented Backpage.com on appeal.

Editorial Comment: Make of him what you will, but Richard Posner is a rara avis in today’s world: He writes his own opinions; he is straightforward; he cuts to the conceptual quick; and does it all without fanfare but with a measure of sophistication worthy of a great jurist. In more ways than one, he puts the Nine to shame.   

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FAN 86.1 (First Amendment News) Court Denies Review in Occupational-Speech Case

Today the Supreme Court denied review in Hines v. Alddredge, the occupational-speech case.

The facts involved a Texas law that requires veterinarians to conduct a physical examination of an animal on its premises before they can practice veterinary medicine on that animal. That law gave rise to a First Amendment challenge owing to the fact that Ronald Hines, a retired Texas-licensed veterinarian, launched a website and posted articles about pet health and care. The Fifth Circuit ruled against the First Amendment claim. Today, the Court refused to hear the case.