Tagged: Constitutional Law


FAN 63 (First Amendment News) CJ Roberts: Mr. First Amendment — The Trend Continues

He has the potential, almost from a running start, to bring a new day and a new era to the Supreme Court.Senator Arlen Specter (Sept. 26, 2005)
Chief Justice John Roberts (photo: Getty Images)

Chief Justice John Roberts (photo: Getty Images)

He is, by all measures, Mr. First Amendment. When it comes to free expression cases, Chief Justice John Roberts is the point man. Moreover, he solidifies that jurisprudential status with each passing year. In the process, we may well be witnessing the evolution of what could turn out to be an unprecedented chapter in the history of free-speech law in America — a welcome chapter to some and an unwelcome one to others. However that might be, one fact is undeniable: John Roberts is busy constructing a First Amendment edifice. Though it is a work still in progress, it is already towering over that of others on the Court.

This Term he has authored all of the free speech cases decided thus far by the Court — Elonis v. United States  (8-1, statutory grounds) and Williams-Yulee v. The Florida Bar (5-4). And then there is truth of the tallies:

Of course, the Chief Justice’s overall record has a few glitches, or what some might deem breaches of faith. For example, strong as his First Amendment credentials are when it comes to sustaining rights, he failed on that score in two important cases: Holder v. Humanitarian Law Project (per JR, 5-4, 2010) and Garcetti v. Ceballos (per AK, 5-4, 2006, JR joining majority). And then there was his opinion for the Court in Morse et al. v. Frederick (5-4, 2007). Finally, there was his vote Brown v. Entertainment Merchants Association (7-2, 2011) wherein he joined Justice Alito’s concurrence and thereby declined to join the First Amendment majority opinion by Justice Scalia. And while cases such as Elonis v. United States (8-1) reveal his tendency to dispose of free speech cases on statutory grounds when possible and in ways consistent with the doctrine of constitutional avoidance, others cases such as  Citizens United v. Federal Election Commission (AK, 5-4, 2010) run contrary to that position. (More could be said about all of these cases and yet other others, but I will reserve further commentary for another time.)

Roberts & Rehnquist: Stark Contrast 

Chief Justice William Rehnquist

Chief Justice William Rehnquist

What to make of it all? Here is how Paul M. Smith (a noted appellate advocate who successfully argued the Brown case) answers that question: “While it is clear that Chief Justice Roberts has become the most important Justice in First Amendment cases, surpassing even Justice Anthony Kennedy, he has shown a willingness to deny protection to speech he disapproves of. Examples include Holder v. Humanitarian Project, Brown v. Entertainment Merchants Ass’n, and Morse v. Frederick. But, that said, Chief Justice Roberts has certainly come a long way from the viewpoint of his mentor Justice (and later Chief Justice) William Rehnquist, who was far less likely than more recent conservatives to vote to invalidate laws under the First Amendment.”

Paul M. Smith

Paul M. Smith

To illustrate Mr. Smith’s comparative point, consider the fact that during his 33 years on the Court, first as an Associate Justice and then as the Chief Justice, Rehnquist authored 71 freedom-of-expression opinions, 29 of which were majority opinions. The vast majority of those opinions were hostile to the free-speech claims raised. And as Professor Geoffrey Stone has observed: “In his more than 30 years on the Supreme Court, Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the 1st Amendment claim only 20 percent of the time.”

“Strong free expression principles”

While some maintain that John Roberts’s opinions primarily serve corporate deregulatory interests (see below), the fact is that there is a bounty of doctrinal law and powerful language in many of those opinions that lawyers have tapped into in any variety of free speech cases.

Robert Corn-Revere

Robert Corn-Revere

According to Robert Corn-Revere, an experienced First Amendment lawyer: “The Chief Justice has espoused strong free expression principles that have had the effect of protecting even speech some consider to be at the fringe of the First Amendment concern – including  fetish videos and speech by hateful religious zealots. And in McCutcheon he observed that ‘[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.’  Those who criticize the application of these principles to campaign laws because they are ‘deregulatory’ simply are engaging in a different sort of result-oriented reasoning. They don’t want the First Amendment to limit those speech regulations they favor.  Chief Justice Roberts’ record may not be perfect (given decisions like MorseGarcetti, and Holder), but it certainly is strong.”

Selected Commentaries:

  1. Sam Baker, “John Roberts: First Amendment Champion*,” National Journal (June 3, 2015)
  2. David H. Gans, “Roberts at 10:The Strongest Free Speech Court in History?”, Constitutional Accountability Center (May, 2015)
  3. Lincoln Caplan, “The Embattled First Amendment,” The American Scholar (Spring 2015)
  4. David H. Gans, “The Roberts Court Thinks Corporations Have More Rights Than You Do,” The New Republic (June 30, 2014)
  5. Ronald Collins, “The Roberts Court and the First Amendment,” SCOTUSblog (July 9, 2013)
  6. Ronald Collins, “Exceptional Freedom-The Roberts Court, First Amendment, and the New Absolutism,” Albany Law Review (2013)
  7. Adam Liptak, “Study Challenges Supreme Court’s Image as Defender of Free Speech,” New York Times (January 7, 2012)
  8. Erwin Chemerisnky, “Not a Free Speech Court,Arizona Law Review (2011)
  9. David L. Hudson, Jr., “Chief Justice Roberts and the First Amendment,” First Amendment Center (April 22, 2011)

New Hampshire High Court: Parking Meter “Robin Hoods” Protected under FA

Don’t follow leaders, watch the parking metersBob Dylan

The case is City of Keene v. Cleaveland, et al (N.H., June 9, 2015). The opinion for the Court was authored by Associate Justice James P. Bassett.

Justice James Bassett

Justice James Bassett

Facts: “The City employs [parking enforcement officers (PEOs] to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a “save.” When the respondents “save” a vehicle, they leave a card on the vehicle’s windshield that reads: ‘Your meter expired! However, we saved you from the king’s tariff!’ The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as ‘f*****g thief,’ ‘coward,’ ‘racist,’ and ‘b***h’; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a ‘threat against [the] people.'”

Held: “[W]e note that we share the trial court’s skepticism as to whether a tortious interference claim can exist when private citizens engage in protest of the government. However, we need not decide whether a viable tortious interference claim can exist under the circumstances present in this case because we agree with the trial court that holding the respondents liable for tortious interference based upon their alleged activities would infringe upon the respondents’ right to free speech under the First Amendment. . . .”

7256167_G“Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort. . . .”

“In light of the City’s allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City. . . . Accordingly, we vacate the trial court’s denial of the City’s request for injunctive relief, and remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.”

Counsel for Respondents: Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally).

Amici: Nixon Peabody LLP of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

California Lawmakers: Reproductive Fact Act

This from a WND report by Bob Unruh: “California’s Democrat-controlled legislature previously became the first state to bar counselors from helping minors be healed of unwanted same-sex attractions. Counselors are allowed only to promote homosexuality to minors. Now, California Democrats, with AB 775, want to require crisis pregnancy centers, including those that are run by faith-based organizations, to actively promote abortion. New York already tried it and was slapped down by the courts.” See Evergreen Association v. City of New York (2nd Cir., 2014)

See also Samantha Lachman, “California Assembly Passes Bill Banning Crisis Pregnancy Centers From Misleading Patients,” Huffington Post, May 26, 2015: “The California Assembly passed legislation Tuesday that would require faith-motivated crisis pregnancy centers to provide comprehensive information about reproductive health care options, including abortion.”

“The bill, known as the Reproductive Fact Act, would require pregnancy centers to post notices saying that reproductive health services, including abortion, are available to pregnant women in the state. Pregnancy centers also would have to disclose whether they lack a medical license. The bill passed on a party-line vote, with Republicans objecting on the grounds that it would unconstitutionally compel government speech for the state’s 167 centers.”

Unprotected: Cellphone video of U.S. senator’s bedridden wife in a nursing home

This news report from the Associated Press: “A Mississippi judge on Monday rejected an argument that a blogger had a First Amendment right to shoot a cellphone video of a U.S. senator’s wife while she was bedridden with dementia in a nursing home. The defense attorney for blogger Clayton Kelly made the free-speech argument during pre-trial motions Monday. Clayton Kelly of Pearl is charged with conspiracy, attempted burglary and burglary”.

“‘I think a lot of this is political. I think my constitutional rights should be respected,’ Kelly, whose blog was called Constitutional Clayton, told reporters outside the Madison County Courthouse.. . .”

“Images of Rose Cochran appeared online briefly during the 2014 election, during a tough Republican primary. Investigators say Kelly was one of several people who conspired to produce the video suggesting U.S. Sen. Thad Cochran was having an affair. . . “

See also Kelly pleads guilty to conspiracy in Cochran photo case,” Jackson Clarion Ledger‎, June 8, 2015

Mobile Monument Project 

This from the Thomas Jefferson Center for the Protection of Free Expression:

The Mobile Monument Project involves transforming a standard issue 20-foot ISO shipping container into an elegant and engaging representation of our precious First Amendment values.

UnknownThe exterior features more than 400 sq ft of “chalkboard” space where visitors can express themselves however they wish. On the inside, a beautiful open gallery space provides a backdrop for rotating exhibits, performances, installations—the sky’s the limit!
In short, the Mobile Monument is an interactive exploration of what it means to enjoy and exercise our right of free expression. And because it’s so portable, the Mobile Monument takes this important message straight to the people. Once completed, the Monument can go almost anywhere:
  • College Campuses
  • State Capitols
  • Public Parks
  • Festivals
  • Community Events
  • Concerts

See video here

DONATIONS NEEDED TO FUND PROJECT: $15,000 goal (go here to contribute)

RelatedEugene Volokh Joins TJC Board of Trustees

David Strauss: “Toil and Trouble in Media-Land”

Professor David Strauss

Professor David Strauss

Over at The New Rambler Professor David Straussreviews Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (2015). Here are a few excerpts:

“The Obama Administration is said to have prosecuted more people for leaking classified information than all previous administrations combined. Journalists have noticed. ‘The Obama Administration is the greatest enemy of press freedom in a generation,’ according to James Risen, the New York Times investigative reporter. Risen’s language is unusually strong, but the general theme is familiar among journalists. In a typical comment, Bob Schieffer, a CBS Washington correspondent, is quoted as saying: ‘Whenever I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now . . . . This administration exercises more control than George W. Bush’s did, and his before that.’”

“It seems unlikely that this Administration is just more authoritarian or paranoid than the one before it (which was in turn more so than the one before it, and so on), or that this President and Attorney General harbor a perverse desire to antagonize the New York Times and CBS. The much more plausible explanation is that the world has changed, and government officials have responded by becoming less tolerant of practices they might have lived with before. . . .”

What are some of the changes that Strauss thinks explains this? He lists four:

  1. “The first change, inevitably, is the technology.”
  2. The second change is the mass availability of information on the Internet, information that was once difficult to obtain.
  3. The third change is in the nature of “the press.” “Today, of course, a self-anointed Ellsberg does not have to submit himself to the judgment of editors like [those of the New York Times or the Washington Post]. Someone who has government secrets can propagate them, worldwide, more or less immediately, either without any intermediary or with an intermediary who will not feel the same obligation to try to take the government’s interests into account.”
  4. The fourth change is “the economics of the media industry put pressure on everyone to cater to the lowest denominator.”

The main problem in all of this, he adds, is not such much the law. “The problem is whether the media themselves will have the incentives and the capacity to do the job that they must do, and ought to do, in a free society. There is only so much the law can do about that.”

Campus Free-Speech Watch

As the the stories and commentaries below (all recent ones) indicate, the battle for free speech on college campuses is proving, yet again, to be the biggest one of the year. What is also noteworthy is the very high success rate of challenges to campus speech codes . . . and yet many remain on the books.     

  1. College Attempts to Censor Student Columnist: Q&A with Andrew Breland,” TheFireorg, June 8, 2015
  2. Robert Soave, “Campus Censorship is The Feds’ Fault,” The Daily Beast, June 6, 2015
  3. Benjamin Wermund, “Student sues Blinn College, says ‘free speech zone’ violates First Amendment,” Chron, June 6, 2015
  4. Ray Nothstine, “Boise State University to Pay $20,000 to Pro-Life Group After Backtracking on Censorship,” CP US, June 6, 2015
  5. George F. Will, “A summer break from campus muzzling,” Providence Journal, June 5, 2015
  6. BSU changes policy, drops lawsuit with campus group,” Associated Press, June 4, 2015
  7. Greg Piper, “Democratic lawmaker defends anti-Christian campus policies at hearing,” The College Fix, June 2, 2015
  8. Brenda Schory, “Waubonsee paid $132K to settle free-speech lawsuit,” My Suburban Life, June 5, 2015
  9. Donald A. Downs, “Shouting down campus speakers,” Philly.com, June 2, 2015
  10. Another university gets ‘green light’ for First Amendment-friendly campus,” News Now, May 29, 2015

Congressman Louie Gohmert on First Amendment Rights in Universities & Schools (June 2015: re statement made at House Judiciary Subcommittee on Constitution and Civil Justice Hearing)

Group Launches Litigation Campaign to Challenge Campus Speech Codes,” Concurring Opinions, FAN 21.1, Jul2 2, 2014

Seinfeld: “I don’t play colleges. They’re so PC.”

This from a Washington Post news story by Justin Wm. Moyer: “Jerry Seinfeld himself has taken a stand — against political correctness on campus. The 61-year-old comedian told an ESPN interlocutor that he avoids performing at universities because of trigger warnings, speech codes and other First Amendment umbrage.”

“‘I don’t play colleges,’ Seinfeld said on The Herd with Colin Cowherd. ‘. . . I hear a lot of people tell me, ‘Don’t go near colleges. They’re so PC.’”

Flashback: Politically Incorrect: “Racist” jokes – David Spade, Sarah Silverman & Bill Maher

Check out this YouTube video of an old Bill Maher show — really quite good back-and-forth.

* * * * *

Journalists, Jails & the First Amendment

“For the first time we have assembled, in one place, virtually all the journalists who’ve gone to jail in the United States for doing a vital part of their job. . . Tonight we’re going to hear their stories.” — John M. Donnelly (See video here.)

* * * * *

Senator Cruz & Shaun McCutcheon

Senator Cruz & Shaun McCutcheon

Shaun McCutcheon — Round ‘n About

→ Luke Mulins, “Shaun McCutcheon Blew Up Campaign-Finance Law and Became a GOP Hero. Then He Set His Sights on Paris Hilton,” The Washingtonian, June 7, 2015

New & Notable Blog Posts

New & Forthcoming Scholarly Articles

  1. Jessica Bulman-Pozen & David E. Pozen, “Uncivil Obedience,” Columbia Law Review(2105)
  2. Daniel E. Herz-Roiphe, “Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment,” Michigan Law Review: First Impressions (2015)
  3. Eugene Volokh, “Gruesome Speech,” Cornell Law Review (2015)
  4. Mohamed H. Aziz , “Counter Terrorism Measures via Internet Intermediaries: A First Amendment & National Security Dilemma,” Journal of Law and Cyber Warfare (forthcoming 2015)
  5. Jordan M. Singer, “Judges on Demand: The Cognitive Case for Cameras in the Courtroom,” Columbia Law Review: Sidebar (2015)
  6. John Korevec, “‘McDonald Does Dallas’: How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate,” Southern California Law Review (2015)
  7. Paul J. Larkin Jr., “Revenge Porn, State Law, and Free Speech,” Loyola Los Angeles Law Review (2014)

News, Op-eds, Commentaries & Blog Posts

  1. Tim Cushing, “New Mexico Judge Says First Amendment Is Subservient To The ‘Dignity Of The Court’,” TechDirt, June 8, 2015
  2. George Will, “Campaign-Finance Reformers’ First Amendment Problem,” National Review Online, June 6, 2015
  3. Gene Policinski, “Inside the First Amendment — A reminder to remember — rededicating the Journalists Memorial, The Morning Sun, June 6, 2015
  4. Mike Goodwin, “Supreme court dodges First Amendment issue, but still puts limits on criminalizing speech,” R Street, June 5, 2015
  5. David Keating, “Another View: Demand for nonprofits’ donor lists violates First Amendment,” Sacramento Bee, June 5, 2015
  6. Charlie Butts, “Porn lawyers claim First Amendment right to hire kids,” NewsNow, June 6, 2015
  7. Ruthann Robson, “Supreme Court Dodges First Amendment Issue in Facebook Threats Case,” Constitutional Law Prof Blog, June 1, 2015
Professor Elliott Visconsi.

Professor Elliott Visconsi

Notre Dame Online Video Lecture Series on First Amendment Law

The Notre Dame Office of Digital Learning offers an informative and engaging overview of First Amendment free expression law in a series of video lectures (or “modules” as they are tagged). The lectures are given by Professor Elliott Visconsi.

  1. Why the First Amendment? 
  2. Arguing Free Expression
  3. Rise of Individually Centered First Amendment
  4. Sedition & Incitement 
  5. What is Speech?
  6. Literariness
  7. Digitality

New YouTube Posts

  1. Alton man wins free speech case before NH Supreme Court,” WMUR-TV, June 9, 2015
  2. Hannity, “Pamela Geller, imam debate threats to free speech,” Fox News, June 7, 2015


[last updated: 6-09-15]

Cases Decided 

  1. Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

  1. Reed v. Town of Gilbert (argued 1-12-15)
  2. Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)

Pending Petitions*

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
  6. Walker-McGill v. Stuart

Review Denied*

  1. O’Keefe v. Chisholm
  2. King v. Christie
  3. Apel v. United States 
  4. Dariano v. Morgan Hill Unified School District
  5. The Bronx Household of Faith v. Board of Education of the City of New York 
  6. Arneson v. 281 Care Committee
  7. Kagan v. City of New Orleans
  8. ProtectMarriage.com-Yes on 8 v. Bowen
  9. Clayton v. Niska
  10. Pregnancy Care Center of New York v. City of New York 
  11. City of Indianapolis, Indiana v. Annex Books, Inc.
  12. Ashley Furniture Industries, Inc. v. United States 
  13. Mehanna v. United States
  14. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  15. Vermont Right to Life Committee, et al v. Sorrell

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.   

LAST SCHEDULED FAN POST, #62: “Federal Judge Blasts Liberal Assault on the First Amendment

NEXT SCHEDULED FAN POST, #64: Wednesday, June 17, 2015


FAN 62 (First Amendment News) Federal Judge Blasts Liberal Assault on the First Amendment

Chief Judge Loretta Preska (credit: NY Law Journal)

Chief Judge Loretta Preska (credit: NY Law Journal)

She is Loretta A. Preska, the Chief Judge of the United States District Judge for the Southern District of New York. And she has just published an article entitled “Tyranny of the Arrogant, Ignorant and Intolerant: The Liberal Movement to Undermine Free Speech,” which appears in the Touro Law Review (2015). The article derives from remarks she gave at the Madison Award Dinner for the New York City Lawyers Chapter of the Federalist Society, on October 8, 2014. Here are a few excerpts:

“[W]ho is that open enemy today, threatening fundamental American rights that should be cherished and perpetuated? Sadly, it is America herself and the arrogance, ignorance, and intolerance of her universities and politics, which have burst open Pandora’s Box. Somehow academia has become the ‘friend of the liberal’ in- stead of the ‘friend of the people;’ a place, as Mayor Michael Bloomberg noted in his commencement address at Harvard, where a liberal arts education has turned into “an education in the art of liberalism.’

“Modern-Day McCarthyism”

“As bastions of intolerance, universities are promoting a single ideology instead of acting as welcoming, neutral forums for debate. In censoring unpopular viewpoints, they rob the marketplace of ideas of its substance and consequently silence the critical debating prac- tice that our Founding Fathers routinely turned to in ironing out the nation’s most complex issues. Mayor Bloomberg added: ‘There is an idea floating around college campuses — including here at Harvard — that scholars should be funded only if their work conforms to a par- ticular view of justice. There’s a word for that idea: censorship. And it is just a modern-day form of McCarthyism.’ This modern-day McCarthyism has run rampant across college campuses.”

“The most troubling attack on our First Amendment freedom”

“. . . Throughout our history we have seen individuals in positions of power attempting to erode what truly makes America the land of the free. Today, for example, there is the specter of fifty-four Senators trying to amend the First Amendment’s glorious protection of freedom of speech in the name of political correctness. . . . The Left’s recent movement actually to amend the Constitution to allow Congress to limit fundraising and spending on all-important political speech is perhaps the most troubling attack on our First Amendment freedom. Such an amendment would rip Pandora’s Box wide open, for it could have the domino effect of allowing further restrictive amendments so vast, unknown, and alarming, that they would surely awaken Madison from his grave.”

The Dangers of Chilling Speech

“Madison, Hamilton and Jay needed a name that would conjure a sense of public-spiritedness in their plea to ratify the Constitution. Today, chilling speech, in whatever form it takes, tramples on the very spirit of Publius’ appeal. Infringing free speech not only makes us arrogant, ignorant, and intolerant, but it also makes today’s Amer- ica the antithesis of all that our Founding Fathers hoped their nation would be. . . .”

Muslim-American woman forced to remove Hijab sues sheriff 

Ms. Dakroub (right, seated) at Arab-American Civil Rights League press conference

Ms. Dakroub (right, seated) at Arab-American Civil Rights League press conference

According to a report in the International Business Times by Clark Mindock, a “Muslim-American woman in Michigan has filed a federal lawsuit against the Oceana County Sheriff Department for allegedly violating her First Amendment rights when she was arrested earlier this month and forced to remove her hijab. Fatme Dakroub, of Dearborn Heights, said the arrest “was the worst experience of my life.”

“Dakroub was vacationing with her children May 17, when she was pulled over in a rental car. The officer questioned her about a traffic ticket she had received years ago — a ticket she claimed to have paid — before arresting and booking her and forcing her to remove her hijab. . . “

“Three male officers were present during the booking when she was asked to remove the headscarf, said Dakroub, who then requested a female officer to assist her during the process, to no avail. She was led to a holding cell without the garment, where she said she was ridiculed by police. ‘I don’t understand why they had to be so rude and mean,’ Dakroub said. ‘I was being so polite with them and just trying to make them understand how uncomfortable I am.'”

The Arab-American Civil Rights League  filed a complaint in the U.S. District Court in the Western District of Michigan. “The complaint asks for a federal judge to rule that the Oceana County Sherriff’s Department’s practices be deemed unconstitutional under the first amendment. ‘We are asking a federal judge today to take action and to stop this continuous harassment and intimidation and set some policy across the line as to how to deal with individuals with their first amendment rights,’ said Nabih Ayad, the executive director of the ACRL. Dakroub was released from the Oceana County Jail on $150 bail. She is asking for compensatory damages in an amount to be determined at a trial.” (Source here)

See also EEOC v Abercrombie & Fitch (June 1, 2015): the Court holds 8-1 that under Title VII a job applicant can show discrimination without showing employer knew there was a need for an accommodation. The case involved Abercrombie’s refusal to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy.

Nightmare at Northwestern Over — Professor Cleared Read More


FAN 61.2 (First Amendment News) Cato’s Ilya Shapiro weighs in on Elonis

Ilya Shapiro

Ilya Shapiro

True to form, in Elonis v. United States the Supreme Court continued its unparalleled defense of free speech — this time in the social-media context. Also true to form, however, Chief Justice John Roberts put together a near-unanimous majority by shying away from hard questions and thus leaving little guidance to lower courts.

The case involved a statute that made it a federal crime to transmit in interstate commerce — the Internet counts — “any communication containing any threat . . . to injure the person of another.” Based on a bizarre series of Facebook posts styled largely on the lurid lyrical stylings of Eminem, Anthony Elonis was convicted under that law of threatening his wife, the police, an FBI agent, and a kindergarten class. Yet prosecutors didn’t prove that Elonis intended to threaten anyone or even understood his words as being threatening. All they showed was that the individuals in question felt threatened by the posts.

The Supreme Court correctly ruled that that’s not enough, that negligently throwing around violent rap lyrics shouldn’t get someone thrown in prison. As Roberts noted, the general rule is that a “guilty mind” — what lawyers call mens rea — is a necessary element of any crime.

But alas that’s as far as Roberts went: since the statute in question doesn’t specify the requisite state of mind, mere negligence isn’t enough. He did not say — the Court did not rule at all — whether an amended statute criminalizing negligent speech would pass First Amendment muster. This issue was the focus of Cato’s amicus brief, which was also signed onto by the ACLU, the Abrams Institute, the Center for Democracy & Technology, and the National Coalition Against Censorship. Indeed, as Justice Samuel Alito points out in partial dissent, the majority opinion doesn’t even say whether “reckless” Facebook posts come under the statute’s purvey (or whether that reading would in turn satisfy the First Amendment.

In short, I’m glad that amateur poet “Tone Dougie” (Elonis’s nom de rap) won’t be practicing his art in the hoosegow, but the Supreme Court’s minimalism has guaranteed this type of case — and maybe even this defendant — an encore. Particularly as social media and other new means of expression evolve, the Hustices need to do more than narrowly slice speech-chilling criminal laws.

Ilya Shapiro
Senior Fellow in Constitutional Studies
Cato Institute


FAN 61.1 (First Amendment News) Court Decides Facebook “Threats” Case on Statutory Grounds

Anthony Elonis

Anthony Elonis

The Court just handed down in decision in Elonis v. United States, which had been argued on December 1, 2014. The Court ruled in favor of the Petitioner Elonis. The opinion is here.

The Vote: 8-1

Author of Majority opinion: Chief Justice Roberts

The Holding: The Court holds that the Third Circuit’s instruction requiring only negligence with respect to the communication of a threat is not sufficient to support a conviction under the federal law at issue in this case.” [Amy Howe, SCOTUSblog]

“The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.” [From majority opinion]

Case decided on statutory grounds; First Amendment question not reached.

Dissenting Opinions: Justice Thomas dissents, and Justice Alito concurs in part and dissents in part.

Justice Alito: “The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would reckless- ness suffice? The Court declines to say. Attorneys and judges are left to guess.”

Justice Thomas: “Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were “true threats” unprotected by the First Amendment, I would affirm the judgment below.”

The Facts: Anthony Elonis was convicted of making threats against his estranged wife, and later against an FBI agent. In response to his wife leaving him and taking their two children, Elonis posted several things referring to her on his Facebook page. On it he wrote: “Revenge is a dish that is best served cold with a delicious side of psychological torture.” Consistent with that statement, he also wrote: “There’s one way to love ya, but a thousand ways to kill ya,/ And I’m not going to rest until your body is a mess,/ Soaked in blood and dying from all the little cuts./ Hurry up and die bitch.” (See here for additional statements.)

A jury found Elonis guilty and he was sentenced to 44 months in prison. In an opinion authored by Judge AnthonyScirica , the Third Circuit upheld his conviction.

The Issues: The two issues before the Supreme Court were:

  1. Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and
  2. whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.

The Lawyers

 John P. Elwood argued the case on behalf of the Petitioner Anthony Elonis.

 Michael R. Dreeben, Deputy Solicitor General, Department of Justice, argued on behalf of the government.

Amici Briefs

Fourteen amicus briefs were filed in the case.

 Amicus briefs in support of the Petitioner were filed by: the  American Civil Liberties Union, the Abrams Institute for Freedom of Expression, the Cato Institute, the Center for Democracy & Technology, and the National Coalition Against Censorship Reporters Committee for Freedom of the Press and Nine Media Organizations, the Thomas Jefferson Center for the Protection of Free Expression, and the Rutherford Institute, among others.

Amicus briefs in support of the Respondent were filed by the Anti-defamation League, Wisconsin and Seventeen Other States, the District Of Columbia, Guam, and the National District Attorneys Association, and the National Center for Victims of Crime, among others.


FAC 5 (First Amendment Conversations) Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book  

I have spent a lifetime fighting for a very broad First Amendment, keeping the government out of the First Amendment. But I have also said that there is a terrible price that one pays for that. — Burt  Neuborne, “The Open Mind” with Richard D. Heffner, January 16, 1997

He is not a pause-button sort of guy / he is not one to vanish into the void / he is not a fellow you forget / and he is never one to forsake a debate or turn down a chance to raise a rebellious lance. He is animated / calibrated / cultivated / complicated / and always opinionated. He is Bill Brennan on overdrive . . . and then some!

Yes, he is Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at New York University Law School. And he has a new book (Madison’s Music: On Reading the First Amendment), about which I will soon say more — but first a few biographical notes, if only to set the stage for the Madisonian music to come.

* * * *

Young Neuborne, HLS 1962

Young Neuborne, HLS 1962

After graduating from Cornell University in 1961, Neuborne studied constitutional law at Harvard under Albert Sacks and had Henry Hart for federal courts. He took a seminar in English Legal History from Samuel Thorne. His Harvard Law School classmates included Michael BoudinStephen BreyerBert Rein, and Patricia Schroeder. Given his interests in the law at that time, it seemed that young Burt Neuborne was destined to be either a public-interest lawyer or a professor. As it turned out, he became both, but it didn’t start out that way.

Had Fortuna not intervened, Neuborne might have continued to be an estate-planning lawyer for the well-heeled of the Eastern corridor. That, at least, is how things looked a half-century or so ago for the young Harvard graduate: “I went to Wall Street for three years after graduation, at a small blue chip firm, Casey, Lane & Mittendorf. [From 1964-1967] I specialized in estate planning for the ultra-rich.” That brand of life-in-the-law was not, however, meant to be his calling. His life-change was the child of chance: “My big break came when a lawyer for the NYCLU transferred into my Army Reserve unit. When a job opened up at NYCLU, I went for it, although my father-in-law almost killed me.” Thankfully, his father-in-law’s homicidal tendencies abated, and with that twist of fate Burt Neuborne’s career traveled along a far different track, one in civil liberties law.

Thus did things begin. And when they did he quickly found himself working in the shadow of some of the ACLU’s brightest lights: “In those days,” he told Joseph Berger, “the NYCLU and ACLU were both located in a building in the Flatiron district honeycombed with left-wing organizations. Aryeh Neier was the NYCLU director. Ira Glasser was associate director. Ruth Bader Ginsburg was a director of the ACLU’s women’s rights project. ‘By the second day I knew this was what I was going to do,’ said Neuborne.” Between 1967 and 1973, Neuborne first worked as staff counsel for the NYCLU and thereafter as the ACLU’s assistant legal director. Later, he served as the National Legal Director of the ACLU from 1981-86.

“I verge on the obsessive,” he once said. How very true.

Burt Neuborne is a scholar / activist / teacher / author / litigator / and one-time actor . . . and rather hyper and quite self-motivated. He has done much and is committed to doing yet more. The Bronx-born lawyer has argued several Supreme Court cases, including Clark v. Community ore for Creative Non-Violence (1984) (the case of the homeless who wanted to sleep in Lafayette Park to protest their plight). Though he lost in the High Court (7-2), earlier he managed to win the Clark case by a 6-5 en banc vote in the DC Circuit, with then Judge Ruth Ginsburg casting the swing vote (though she found “the case close and difficult”).

Neuborne was the founding Legal Director of the Brennan Center, which he oversaw from 1995-2007. Much of  its focus, then and now, relates to efforts to reinforce American democracy and secure campaign finance reform. During the late 1990s, Neuborne authored Building a Better Democracy: Reflections on Money, Politics and Free Speech (Brennan Center for Justice at NYU School of Law, 1999). Consistent with that, the Center has pursued a constitutional course (see, e.g., here, herehere and here) in tune with what Neuborne argued in Nixon v. Shrink (2000) when he opposed the First Amendment claim raised in that campaign finance case. To the same effect, he filed amicus briefs in opposition to those of the ACLU in the following cases:

More recently, he filed an amicus brief in Williams-Yulee v. Florida State Bar on behalf of himself and three other “past leaders of the ACLU” — this time he was on the winning side thanks to Chief Justice John Roberts’ unexpected vote. And Neuborne has debated Floyd Abrams on the pages of The Nation (2011), this on the topic of the legitimacy of Citizens United. (See also here for  video of Intelligence Squared debate with Floyd Abrams and Nadine Strossen).

* * *  *

Screen Shot 2015-03-08 at 10.30.38 PMFebruary 17, 2015 – 6:00 p.m, New York University Law School, Vanderbilt Hall: It was one of the high points in his long and diverse career. It was the Inaugural Lecture of the Norman Dorsen Professorship in Civil Liberties, and the all-smiling Burt Neuborne was the one to give that lecture named after his long-time friend (video here). In the course of that distinguished lecture, Neuborne admitted: “I have to confess . . . , I signed the [ACLU] brief in Buckley v. Valeo” (1976). Before anyone had a chance to gasp, however, he changed gears and branded his earlier action as a mistake. And then with his characteristic bravado, he added: “Today we live under an imperial seven-word free speech clause that redoubles its deregulatory efforts long after it has lost sight of its Madisonian goals.”

There is, of course, more to the First Amendment story of this man who has been a force in our free-speech world and will likely continue to be one. But my biographical sketch ends here, save for one more comment.

Bottom line: Make of Burt Neuborne what you will — admire him or abhor him — but don’t ignore him, for his roller-coaster-of-a-life-ride has yet to run its daring and twisting course.


See here re SCOTUSblog six-part video interview series with Neuborne.

→ See here for curriculum vitae

                           → SeeJustice Sotomayor joins in discussion of Burt Neuborne’s New Book,”                                                      First Amendment News/Concurring Opinions,  March 25, 2015


The First Amendment is about making democracy work. — Burt Neuborne (Oct. 2014)

Question: The cover of your book has a photo of an 1816 painting of James Madison by John Vanderlyn (1775-Unknown1852). The image on your book, however, cuts off the top of Madison’s face so that his eyes are hidden. When you first saw a mockup of the jacket, did that fact catch your eye? If so, what did (or now, what do) you make of it?

Neuborne: I liked the veiled and somewhat mysterious image. It reinforces my sense of how difficult it is to recapture the past.

Question: In many ways, Madison’s Music: On Reading the First Amendment (New York University Press, 2015, 272 pp.) is unconventional, starting with its touching full-page dedication to your Father (“Odysseus the Tailor”) / to the poetic cast of the first chapter with a nod to Wallace Stevens / to the textual analysis that informs your theoretical arguments concerning democratic government / to the various historical and conceptual narratives that both challenged and inspired Madison / to the book’s ending which comes full circle with poetic nuance.

Why did you elect to approach your subject with literary and artistic flare rather than by way of a more traditional approach? Read More


FAN 61 (First Amendment News) Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era

In this post I highlight two new works (one on dissent, the other on data, etc.) to emphasize the importance of history, on the one hand, and the challenge of new technologies to inform the way we think about the First Amendment, on the other hand.

Let me start with history: Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. The First Amendment’s greatest virtue is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists,  and even nihilists and racists.

Professor Ralph Young

Professor Ralph Young

Enter Temple University Professor Ralph F. Young and his new book, Dissent: The History of an American Idea (New York University Press, 2015). Generally speaking, this 600-page tome, which follows Young’s various volumes titled Dissent in America, does a splendid job of chronicling much of the evolution of dissent in America. His panoramic account spans much in the history of dissent from the plight of the Puritans, to the fate of Native American Indians, to the struggle of abolitionists, to the campaigns of labor activists, to the crusades of feminists, to the sit-ins of civil rights demonstrators, to the marches of war protestors, to the anti-Establishment songs of Bob Dylan, to the Stonewall riots, to the politics of the Tea Party, to the antics of the Occupy Wall Street movement, and more! It is a remarkable achievement.

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Sadly missing from this otherwise impressive survey of dissent in the United States is any mention of the likes of:

That said, there is still more than a big bundle of worthwhile and eye-opening historical reading to be found between the covers of this engaging volume.

For a philosophical account of what exactly constitutes dissent, see Collins & Skover, On Dissent: Its Meaning in America (Cambridge University Press, 2013).

Forthcoming: Stephen J. Solomon, Revolutionary Dissent (Palgrave Macmillan, January 2016)

Disclosure: Though an ad for Dissent: The History of an American Idea appears on this page, I had no involvement with it and was not otherwise influenced (positively or otherwise) by it.

* * *  * 


Venturing on into the future: On May 26th Seattle University Law Professor David Skover will speak at the Third Annual Governance of Emerging Technologies Conference in Scottsdale, Arizona. His remarks will be delivered at the outset of a panel discussion entitled “Robotics & Autonomous Systems.” The panel will be moderated by Wendell Wallach. The other panelists are Kate Darling and Greg Garvey.  

Professor David Skover

Professor David Skover

Professor Skover’s remarks are based on a work-in-progress, tentatively titled “Intentionless Free Speech: Robots & Receivers” (of which I am the co-author) (NB: We chose the term “intentionless” because it conveys a meaning quite different than “unintentional.”) In brief, Skover’s remarks will examine why First Amendment coverage should be assigned to robotic expression, quite apart from whether such expression merits constitutional protection when balanced against a spectrum of potential harms. The paper argues that robotic expression puts into  bold relief the view that much First Amendment speech is protected because of the experience of a user or receiver. The paper builds on, or moves beyond, or takes issue with the works of robotic free speech scholars Jane Bambauer, James Grimmelmann, Timothy Wu, and Eugene Volokh, among others. The paper began as an outgrowth of a series of conversations with Professor Ryan Calo, whose support and encouragement have been invaluable in developing our ideas in this new and largely uncharted area.

“Intentionless Free Speech” is the latest installment of the authors’ ongoing examination of the relationship between law and technology. This venture began with a 1990 article entitled “The First Amendment in an Age of Paratroopers,” and then continued with a 1992 article entitled “Paratexts” (expanded and reconstituted in “Paratexts as Praxis” in 2010), and ultimately developed into a book entitled The Death of Discourse (1996 & 2nd ed., 2005).

Headline: “NYC Censorship Event Gets Censored” — Another Mohammed Controversy  Read More


FAN 60 (First Amendment News) — Mohammed-Cartoon Controversy Continues — Liberals Divided

We defend the First Amendment for everybody because there is no other way to defend it for ourselves.Ira Glasser (December 1977)

Intolerance is a human tragedy and must be addressed. But if there’s one cardinal rule in America, it’s that we err on the side of counter-speech, not censorship, when we hear things we don’t like but that don’t directly hurt us. — Gabe Rottman (August 12, 2013)

It’s axiomatic: Give it enough time and any irksome First Amendment issue will resurrect, albeit in new cultural garb but similar enough to be more than a distant cousin. The Mohammed-cartoon controversy is only the latest example of an old issue remerging to once again test the steel of our commitment to free speech. And with a firebrand like Pamela Geller — the  who promoted the “Draw the Prophet” contest in Texas — fanning the flames, some find the need to back away from the speech-protective tradition of the First Amendment. Predictably, rationalizations are tendered and excuses offered while exaggerations are served up in bountiful plenty. Why? Simple: Whenever speech really offends us (particularly when the speaker is over-the-top provocative), there is a strong tendency to default to a censorial mindset. Then again, the true greatness of our First Amendment is our constitutional commitment to default in a different direction — to ratchet  towards freedom.

Frank Collin demonstrating in Chicago

Frank Collin demonstrating in Chicago (1978)

You hear the words a lot these days in the news: hate speech / incendiary speech / fighting words / and much more as the battles lines draw around the Texas controversy. If you turn the free-speech clock back 38 years and situate the First Amendment in Illinois, you will soon enough discover a similar conflict with people throwing around similar epithets. Remember Skokie? Remember the Nazi campaign to march there, in that predominately Jewish community with many Holocaust survivors? (See YouTube clips here and here — see also here)

Before and after the matter was resolved in 5-4 in a per curiam opinion by the Supreme Court (with liberals siding with the claims of the National Sociality Party) and later in a cert. denial in 1978, there was considerable and heated debate among liberals. And nowhere was that debate more heated than in the ranks of the American Civil Liberties Union, which through its Illinois affiliate defended the First Amendment claims of Frank Collin — the lead party in the suit to permit the Nazis to march in Skokie.

The story of this contentious moment in our free-speech history is ably set out in Philippa Strum’s When the Nazis Came to Skokie: Freedom for Speech we Hate (1999). Part of that history is the enormous price the ACLU paid to defend the First Amendment even if it meant risking the group’s own financial survival. (In those days, the New York Times editorial board stood with the ACLU in its time  of peril.) Years later, that sacrifice came to be seen by many as a badge of honor. In some ways there was even a Shakespearean quality to the fight fought back then by the ACLU:

This day is call’d the feast of Crispian. He that outlives this day, and comes safe home,Will stand a tip-toe when this day is nam’d, And rouse him at the name of Crispian. He that shall live this day, and see old age, Will yearly on the vigil feast his neighbors  And say “To-morrow is Saint Crispian.”Then will he strip his sleeve and show his scars, And say “These wounds I had on Crispin’s day.”

National ACLU Weighs in on Cartoon Controversy

Lee Rowland

Lee Rowland

Meanwhile, a new fight emerges as liberals once again battle over how much free-speech freedom they can tolerate. Though up to now the national ACLU has not been very vocal on the cartoon controversy, when I inquired I received the following reply from Lee Rowland, the Staff Attorney for the Speech, Privacy & Technology Project: “I just wanted to let you know that the ACLU unequivocally believes that Ms. Geller and AFDI’s speech was protected, and that frankly, it’s not even a tough question. Our First Amendment protections mean nothing if they do not extend to speech that many find objectionable and provocative.”

The Draw-MohammedCartoon Controversy — Seven Views

 Real Time with Bill Maher: In Defense of Free Speech (HBO): “This is America. Do we not have the right to draw whatever we want? . . . Do we have to accept that Muslims are unable to control themselves the way we would ask everyone else in the world?  To me that’s bigotry; that’s the soft bigotry of low expectations.”

Bret Stephens

Bret Stephens

Bret Stephens, “In Defense of Pamela Geller,” Wall Street Journal, May 11, 2015: Ms. Geller is hammering home the point, whether wittingly or not, that the free speech most worth defending is the speech we agree with least. That’s especially important when the enemies of free speech—in this case, Muslim fanatics—are invoking the pretext of moral injury to inflict bodily harm. A society that rejects the notion of a heckler’s veto cannot accept the idea of a murderer’s veto simply because the murderer is prepared to go to greater extremes to silence his opponents.”

Editorial, “Free Speech vs. Hate Speech,” NYT, May 6, 2015: “the Muhammad Art Exhibit and Contest in Garland, Tex., was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom.”

Eugene Volokh, “No, there’s no ‘hate speech’ exception to the First Amendment,” Volokh Conspiracy, May 7, 2015: “there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.”

 Kathleen Parker, “Use and abuse of First Amendment,” Yakima Herald, May 10, 2015: “I take a back seat to no one when it comes to defending free speech — even that of the worst sorts. We let neo-Nazis and the Ku Klux Klan march and protest because the true test of free speech is that unpopular speech is tolerated.That said, we needn’t embrace or celebrate people like Geller, who intentionally try to provoke a confrontation.She’s welcome to sponsor a cartoon contest, but we don’t have to attend. If Geller wants to stand on street corners and shout her views, no one has to listen.”

 John Costa, “Testing the First Amendment,” The Bulletin, May 10, 2015: “The question for those of us who value the First Amendment is easy to state but painfully difficult to answer. Are there limits we should impose on ourselves?In fact, newspapers that have standards of publication do it every day, which I know doesn’t answer the question of whether to publish the images of Charlie Hebdo or the cartoonists in Texas. I wholly support their right to their choice, but for me the answer is a resounding, ‘It would depend.'”

Stuart Anderson, “Have Mormons Become America’s Best Advocates For Freedom Of Speech?,” Forbes, May 7, 2015:”A worldwide debate has emerged over religion and freedom of speech. And who, by example, has become America’s best advocate for free speech? The surprising answer may be the Church of Jesus Christ of Latter-day Saints.”

Yale Law Professors see Blueprint for Campaign Reform in Williams-Yulee Read More


FAN 59.1 (First Amendment News) Online Instructions on How to Make 3-D Printable Guns — Protected Speech?

It’s fun to challenge the State to greater and greater levels . . . To challenge it successfully enough leads to its own suicide, its own collapse. . . . There is a certain kind of logic to it, an extreme logic, a fatal startegy.  — Cody Wilson (ReasonTV)

Cody Wilson -- have gun, will publish

Cody Wilson — have gun, will publish

Cody Wilson likes guns, of a certain variety that is. He savors guns of the 3-D printable genre. With Mr. Wilson’s instructions and a costly 3-D printer, anyone can make a “Wiki weapon” or “Liberator” as he tags these plastic guns that can fire deadly bullets. The process is summarized by the “techno anarchist” in this YouTube video (see also 25-minute ReasonTV video interview here).

What does this mean? Well, it “won’t be long before a felon, unable to buy a gun legally, can print one at home. Teenagers could make them in their bedroom while their parents think they are ‘playing on their computer.’ I’m talking about a fully functional gun,” adds New York Times reporter Nick Bilton, “where the schematic is downloaded free from the Internet and built on a 3-D printer, all with the click of a button.” Worse still, says Bilton, “[a]fter committing a crime with a printed weapon, a person could simply melt down the plastic and reprint it as something as mundane as a statue of Buddha. And guns made of plastic might not be spotted by metal detectors in airports, courthouses or other government facilities.” (See May 6, 2015 NYT story here re history leading up to this controversy.)

We’re not interested in making you a machine where you have a more productive life. We’re interested in multiplying the problem. — Cody Wilson (BackChannel, March 11, 2015)

According to a Fox News report, “[w]ithin two days of publishing the blueprints on the Internet, on May 5, 2013, 100,000 people around the world had downloaded them. The goal, Wilson said, was to invalidate the government’s ‘unconstitutional’ hold on gun technology.” Predictably, the government stepped in. The State Department “claimed Wilson violated the International Traffic in Arms Regulations, which ‘requires advance government authorization to export technical data,’ and as a result, could spend up to 20 years in prison and be fined as much as $1 million per violation.”

In October 2014 Wilson revealed his biggest project to date: the Ghost Gunner, a miniaturized [Computer Numeric Control] milling machine small enough to sit on a desktop. It’s thousands of dollars cheaper than big CNC mills [and can be used to make plastic guns] . . . . Defense Distributed sold out a pre-order of 500 machines, collecting nearly $700,000 in the process. Wilson moved back to Austin. By December, Defense Distributed was assembling Ghost Gunners in a new, 1,800-square-foot factory. [Source here]

Wired Magazine branded Cody Wilson as one of the “15 most dangerous people in the world.”

Acting through his 3-D gun printer company, Defense Distributed, the former University of Texas Law School student (he dropped out) has decided to defend his purported Second Amendment rights by way of a First Amendment defense to publish his computer code gun-making instructions. To that end, the 27 year-old Wilson has taken on the State Department by filing a lawsuit charging that the government’s attempts to prevent him from publishing his instructions are an unconstitutional prior restraint of his free speech rights.

  • Name of Case: Defense Distributed v. U.S. Dep’t of State (complaint here)
  • Named Plaintiffs: Defense Distributed & Second Amendment Foundation
  • Complaint filed in: US District Court for the Western District of Texas, Austin Division

The attorneys in the case are:

  1. Alan Gura (he successfully argued Dist. of Columbia v. HellerMcDonald v. Chicago)
  2. Matthew Goldstein, and
  3. Professor Josh Blackman.

Summary of Complaint

Alan Gura

Alan Gura

“Contrary to the Justice Department’s warning that such actions are unconstitutional, Defendants unlawfully apply the International Traffic in Arms Regulations, 22 C.F.R. Part 120 et  seq. (“ITAR”) to prohibit and frustrate Plaintiffs’ public speech, on the Internet and other open forums, regarding arms in common use for lawful purposes. Defendants’ censorship of Plaintiffs’ speech, and the ad hoc, informal and arbitrary manner in which that scheme is applied, violate the First, Second, and Fifth Amendments to the United States Constitution. Plaintiffs are entitled to declaratory and injunctive relief barring any further application of this prior restraint scheme, and torecover money damages to compensate for the harm such application has already caused.”

First Amendment claims 

  1. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as an unconstitutional prior restraint on protected expression.
  2. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as overly broad, inherently vague, ambiguous, and lacking adequate procedural protections.
  3. Defendants’ prepublication approval requirement is invalid as applied to Defense Distributed’s posting of the Subject Files, because Defendants have selectively applied the prior restraint based on the content of speech and/or the identity of the speaker.
  4. Defendants’ interruption and prevention of Plaintiffs from publishing the subject files, under color of federal law, violates Plaintiffs’ rights under the First Amendment to the United States Constitution causing Plaintiffs, their customers, visitors and members significant damages. Plaintiffs are therefore entitled to injunctive relief against Defendants’ application of the prior restraint.



FAN 59 (First Amendment News) Williams-Yulee — The Ruling Few Expected . . . & the One Few Will Remember

Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover. —Alan Morrison (May 4, 2015)

Let’s begin with the numbers: Williams-Yulee v. The Florida Bar  is the

  • thirty-eighth free expression opinion rendered by the Roberts Court;
  • the eighth case during the Chief Justice’s tenure involving elections and campaign funding;
  •  the ninth five-four split in a Roberts Court free expression case;
  • the sixth five-four split in a campaign-finance case; and
  • the first of four First Amendment free expression cases the Court has agreed to review this Term.

Two more facts:

  • Williams-Yulee is the thirteenth majority (plurality re Part II) opinion by the Chief Justice — he has authored more majority opinions in the First Amendment free speech area than anyone else. Justices Anthony Kennedy and Antonin Scalia are next in line with five each.
  • Finally, it bears noting that this is the second time the Chief Justice Roberts has found a compelling state interest sufficient to trump a First Amendment claim. See Holder v. Humanitarian Law Project (2010).

Okay, enough with the numbers.

Question: Just how important is the Chief’ Justice Roberts’ Williams-Yulee opinion?

Answer: Not very, for the most part, that is. Here is why I say so — aided by some of the insights offered by my friends and colleagues who participated in the SCOTUSblog symposium (see listing below) on Williams-Yulee. I also offer a few related observations.

Seven ways to think about Williams-Yulee  . . . & then forget about it: 

  1. The Good for One Time Only Holding: Yes, John Roberts jumped ship in a First Amendment case and broke ranks with the “tenacious trio” (Scalia, Thomas, and Alito). But don’t count on that happening again unless you believe in the GOD of SUPREME COURT MIRACLES. And don’t expect strict scrutiny to be so relaxed in future First Amendment cases. By the same token, don’t assume that a majority will settle for such a wide fit when it comes to applying the narrowly tailored doctrine in any other First Amendment free expression cases (national security, government employee speech, and student speech excepted).
  2. Limited to the Facts of this Case Only: For all the ink spent on safeguarding public confidence in the integrity of elections, know this: Williams-Yulee is likely to confined to the particular facts of the case — and not a comma beyond it. With that in mind, consider the fact that this was a case of a judicial candidate personally soliciting campaign funds. It was not a case of a  PAC or a corporation or a wealthy donor doing likewise in order to support that same judicial candidate. Or even hosting a fundraising event for such a judicial candidate, replete with that candidate present.  Nor was it a case of a judicial candidate making campaign promises as to how he or she would rule in a general class of cases.
  3.  A New Holding that Bows to an Old One: The rule of Republican Party of Minnesota v. White (2002) — the case that James Bopp, Jr., successfully argued and the one in which Justice Scalia wrote for the majority — will likely continue to be the First Amendment mainstay in most, if not all, other judicial election cases.
  4. The Judicial Elections Exception to the First Amendment: As evidenced by what it did in United States v. Stevens (2010) and in Brown v. Entertainment Merchants Association (2011), the Roberts Court has sometimes clung to the notion that speech is at least presumptively protected unless it falls into some category of historically unprotected expression. On that very point, Justice Scalia’s dissent (joined by Justice Thomas) took issue with the majority opinion: “Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. (citation omitted). No such tradition looms here.” As Ilya Shapiro pointed out, we now have a new exception to the First Amendment, which brings the number to 44 exceptions depending on how you count them.
  5. The Reinvigoration of Disclosure Requirements: One ongoing question in the campaign-finance First Amendment arena is the extent to which the Roberts Court will uphold various disclosure requirements. On this important point, Justice Kennedy (writing for himself alone) noted: “Indeed, disclosure requirements offer a powerful, speech-enhancing method of deterring corruption – one that does not impose limits on how and when people can speak. He then added: “‘Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.’ Based on disclosures the voters can decide, among other matters, whether the public is well served by an elected judiciary; how each candidate defines appropriate campaign conduct (which may speak volumes about his or her judicial demeanor); and what persons and groups support or oppose a particular candidate.” Question: Will all this praise of disclosure requirements be confined to the narrow facts of Williams-Yulee? Stay tuned!
  6. More Free-Speech Protections Under State Constitutions? It is one of the cornerstones of federalism: A state Court may rely on its own constitution to provide greater rights than those guaranteed under the Federal Constitution, provided it does not violate any federal laws. By that constitutional measure, assume that, say, Arizona had a law identical to the one sustained in Williams-Yulee. Assume furthermore that the state high court in considering the constitutionality of that law under its state constitution concluded that the law was not narrowly tailored and thus struck it down. Assuming that the independent and adequate state grounds doctrine were satisfied, a state court might well take its analytical cue from the dissenters in Williams-Yulee (much as liberal state court judges once took their cue from the dissenting opinions of Justices Brennan and Marshall during the Burger and Rehnquist Court eras).
  7. Does it All Come Down to Recusals and Due Process Challenges? Given the problems that arise when judges run for election, it may be that the only road to fairness, consistent with the demands of the free speech provisions of the federal and state constitutions, are stronger recusal rules and a fortified version of the due process claim sustained in Caperton v. A.T. Massey Coal Co. (2009).  In this regard, it is important to note, as the Caperton majority did, that the objective standards of  due process do not require proof of actual bias.

A Different View of Williams-Yulee

As with anything in the First Amendment world, others have a different take on Williams-Yulee and see it as significant and even a a sign of things to come: “Roberts’ authorship of the decision was pivotal, and not just because he is chief justice. Roberts has overseen a trend during his tenure toward loosening restrictions on campaign speech and money on First Amendment grounds,” is how Tony Mauro saw it. And as Professor Rick Hasen told Mauro: ““This is a huge win for those who support reasonable limits on judicial elections, and getting [Chief Justice John] Roberts on this side of the issue is surprising, welcome, and momentous.”

Contributors to SCOTUSblog symposium on Williams-Yulee

  1. Ronald Collins, “Foreword: Are elected state judges now ‘above the political fray’?
  2. Floyd Abrams, “When strict scrutiny ceased to be strict
  3. Jessica Ring Amunson, “A rare case indeed
  4. Lawrence Baum, “The Justices’ premises about judicial elections
  5. Robert Corn-Revere, “For Judges Only
  6. Robert D. Durham, “Yes, it can hurt just to ask
  7. Joseph Grodin, “The distinctive character of judging
  8. Ilya Shapiro, “The judicial-elections exception to the First Amendment
  9. Matthew Streb, “Much ado about nothing?
  10. Josh Wheeler, ““Seem familiar?” and other random musings on Williams-Yulee

See also, Alan Morrison, “Williams-Yulee – The ruling with no real-world impact,” Concurring Opinions, May 4, 2015

Pamela Geller — Free Speech’s Controversial Defender

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She is an articulate defender of free speech / she is a political firebrand / she is an unabashed self-protmoter and media persona / she is a fearless blogger / she is the co-author of The Omama Administration’s War on America (2010) / she is the president of the American Freedom Defense Initiative / she actively  leads various “violent jihads” campaigns  / and she is one of the co-founders of Stop Islamization of Nations. Read More