Tagged: First Amendment

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FAN 52 (First Amendment News) Corn-Revere signs with Cambridge to do Censorship Book

Bob Corn-Revere

Bob Corn-Revere

Noted First Amendment lawyer Robert Corn-Revere will soon rejoin the ranks of practicing free speech lawyers who have written books on the subject. The never-tiring lawyer has just signed a contract with Cambridge University Press to do a book entitled The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma.

The book will cover a variety of censorship-related topics — from the life and times of Anthony Comstock (1844-1915) to indecency regulations and campus speech codes and much more. The manuscript should be completed in a year or so.      

Anthony Comstock

Anthony Comstock

In 1999 Mr. Corn-Revere (a former legal advisor to an FCC Commissioner) co-authored Modern Communications Law (with Harvey Zuckman & Robert Frieden), and in 1997 edited Rationales & Rationalizations: Regulating the Electronic Media  (introduction by Senator Patrick Leahy).

In 2005 he prepared a report for the First Amendment Center entitled Implementing a Flag-Desecration Amendment to the U.S. Constitution

In 2003 he successfully petitioned the governor of New York to posthumously pardon the comedian Lenny Bruce (the first and only such pardon in the history of New York).

* * * *

Other practicing lawyers who have edited or authored books (other than casebooks) on free speech and related topics include:

  1. Floyd Abrams: Speaking Freely: Trials of the First Amendment (2005) & Friend of the Court: On the Front Lines with the First Amendment (2012)

    James Goodale

    James Goodale

  2. James C. Goodale: Fighting for the Press (2013), & Rob Frieden, All About Cable and Broadband (2014)
  3. Lee Levine (and Stephen Wermiel): The Progeny: Justice William Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014)
  4. Mike Goodwin: Cyber Rights: Defending Free speech in the Digital Age (2003)
  5. Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (2013), and Not in Front of the Children: ‘Indecency’, Censorship, and the Innocence of Youth (2001), and Sex, Sin and Blasphemy: A Guide to America’s Censorship Wars (1993)
  6. Jonathan Emord, Freedom, Technology, and the First Amendment (1991) & Global Censorship of Health Information (2010)
  7. John F. Wirenius, First Amendment, First Principles: Verbal Acts & Freedom of Speech (2000)
  8. Edward J. Cleary: Beyond the Burning Cross: A Landmark Case of Race, Censorship, and the First Amendment (1995)

    Cameron DeVore

    Cameron DeVore

  9. Bruce Sanford: Sanford’s Synopsis of Libel and Privacy (1991) & Don’t Shoot the Messenger: How our Growing Hatred of the Media Threatens Free Speech for All of Us (1999) & The First Amendment Book (1991) (with Robert J. Wagman)
  10. Stephen Brody & Bruce Johnson: Advertising and Commercial Speech, A First Amendment Guide (2004-2014) (originally by P. Cameron DeVore and Robert Sack)
  11. Patrick M. Garry, Scrambling for Protection: The New Media and the First Amendment (1994)
  12. Robert Sack, Libel, Slander, and Related Problems (1997) (with Sandra S. Baron) (since revised while RS was a sitting judge)

    Martin Garbus

    Martin Garbus

  13. Martin Garbus: Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way (2010)
  14. David O. Stewart, Madison’s Gift: Five Partnerships That Built America (2015)
  15. William Bennet Turner: Figures of Speech: First Amendment Heroes and Villains (2011) (foreword by Anthony Lewis)
  16. Elliott C. Rothenberg, The Taming of the Press: Cohen v. Cowles Media Company (1999)
  17. Leon Friedman, editor, Obscenity: The Complete Oral Arguments before the Supreme Court in Major Obscenity Cases (1970)
  18. Richard Kuh: Foolish Figleaves: Pornography in and out of Court (1968)
  19. Albert B. Gerber, Sex, Pornography and Justice (1965)
  20. Elmer Gertz: Gertz v. Robert Welch, Inc: The Story of a Landmark Libel Case (1992) & Henry Miller Years of Trial and Triumph, 1962-1964: The Correspondence of Henry Miller and Elmer Gertz (editor, 1978)
  21. J.W. Ehrlich: Howl of the Censor (1961)
  22. Charles Rembar: The End of Obscenity(1968)

    Morris Ernst

    Morris Ernst

  23. Margaret C. Jasper, The Law of Obscenity and Pornography (2011)
  24. Morris L. Ernst, To the Pure: A Study of Obscenity and the Censor (1928), The First Freedom (1948), and Morris L. Ernst & Alan U. Schwartz: Censorship: The Search For The Obscene (1965)
  25. Lamar T. Beman, editor, Censorship of Speech and the Press (1930)
  26. Walter Nelles, editor, Espionage Act Cases with Certain Others on Related Points — New Law in Making As to Criminal Utterance in War-time (1918)
  27. Theodore Schroeder: Free Speech for Radicals (1916) (& various other books)
  28. Tunis Wortman, A Treatise Concerning Political Inquiry and the Liberty of the Press (1800)

Upcoming Memorial Service for Herald Price Fahringer 

A memorial service for Herald Price Fahringer (1927-2015), a criminal defense and free-speech lawyer, will be held on Saturday, March 28th at 2 p.m. at the Surrogate’s Court, 31 Chambers Street in Manhattan.

In lieu of flowers, donations may be made in his honor to the National Association of Criminal Defense Lawyers’ Foundation for Criminal Justice at:  http://nacdl.us/heraldpricefahringe.

Please contact erica.dubno@fahringerlaw.com if you have any questions.

Vintage Volokh — Professor Files Brief in 4th Circuit Government Employee Firing Case Read More

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FAN 51.4 (First Amendment News) FCC Ruling: Broadband Internet Providers Have no First Amendment Rights re Access Services

On March 12, 2015, the Federal Communications Commission issued a 400-page ruling entitled “Report and Order on Remand, Declaratory Ruling, and Order.”

UnknownBy the Commission: Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel issuing separate statements; Commissioners Ajit Pai and Michael O’Rielly dissenting and issuing separate statements.

Here are a few First Amendment related excerpts from the FCC ruling and order:

  1. Benefit to Public: “Informed by the views of nearly 4 million commenters, our staff-led roundtables, numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.”
  2. Mere Transmission: “When engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as conduits for the speech of others. The manner in which broadband providers operate their networks does not rise to the level of speech protected by the First Amendment. As telecommunications services, broadband Internet access services, by definition, involve transmission of network users’ speech without change in form or content, so open Internet rules do not implicate providers’ free speech rights. And even if broadband providers were considered speakers with respect to these services, the rules we adopt today are tailored to an important government interest—protecting and promoting the open Internet and the virtuous cycle of broadband deployment—so as to ensure they would survive intermediate scrutiny.”
  3. No Speaker Status: “Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker—absent speech, such rights do not attach.”
  4. Limited to Access Services: “[T]he free speech interests we advance today do not inhere in broadband providers with respect to their provision of broadband Internet access services.”
  5. Cable Distinguished: “[B]broadband is not subject to the same limited carriage decisions that characterize cable systems—the Internet was designed as a decentralized ‘network of networks’ which is capable of delivering an unlimited variety of content, as chosen by the end user.”
  6. Content Neutral“Even if open Internet rules were construed to implicate broadband providers’ rights as speakers, our rules would not violate the First Amendment because they would be considered content-neutral regulations which easily satisfy intermediate scrutiny. In determining whether a regulation is content-based or content-neutral, the ‘principal inquiry . . . is whether the government adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.'”
  7. Narrowly Tailored: “[T]he rules here are sufficiently tailored to accomplish these government interests. The effect on speech imposed by these rules is minimal.
  8. Citizens United Distinguished: “Our rules governing the practices of broadband providers differ markedly from the statutory restrictions on political speech at issue in Citizens United. Our rules do not impact core political speech, where the ‘First Amendment has its fullest and most urgent application.’ By contrast, the open Internet rules apply only to the provision of broadband services in a commercial context, so reliance on the strict scrutiny standards applied in Citizens United is inapt.”
  9. Compelled Disclosure: “The disclosure requirements adopted as a part of our transparency rule also fall well within the confines of the First Amendment. . . . The Supreme Court has made plain in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio that the government has broad discretion in requiring the disclosure of information to prevent consumer deception and ensure complete information in the marketplace.”
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FAN 51.2 (First Amendment News) Larry Tribe unto the Breach — “I believe Citizens United was rightly decided” (But hold on, there is more . . . )

[J]ust as these issues cannot be intelligently settled by slogans like “money isn’t speech” and “corporations aren’t people,” so too they cannot be satisfactorily settled by proclamations that independent expenditures don’t corrupt or by sweeping assumptions that government regulation of spending on political speech always equals censorship.” — Laurence Tribe (March 9, 2015)

Venturing into dangerous ideological minefields, Professor Larry Tribe has just posted an article on the most controversial topic in the modern free speech era. His article, posted on SSRN, is entitled “Dividing ‘Citizens United': The Case v. The Controversy.” The piece will appear in a future issue of Constitutional Commentary.

Here is how Tribe begins his article:

In the five years since Citizens United, that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told ‘no.'”

And where does the all-too-liberal professor come down on the case that so many liberals love to hate? Well, here is his short take: “As a case dealing with a particular controversy over a proposed publication, I believe Citizens United was rightly decided.” He sounds like another liberal prepared to incur the wrath of his fellow liberals — merely consider how this issue has divided the ACLU. But hold on; the good professor may yet endear his liberal friends with the next admonition:

It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Laurence Tribe

Professor Laurence Tribe

For those reasons and others, Professor Tribe believes we should rethink the First Amendment as it pertains to campaign finance law. “The First Amendment,” he adds, “requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme.” He fears that the Court has begun to privilege “an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture.” That troubles him.

And yet . . . he remains concerned about First Amendment liberty being cabined. That troubles him, too. What to do? Nuance! Balance! Moderation!

On the one hand: “The Supreme Court’s sin in Citizens United is not that it has been wrong to recognize and embrace the libertarian values that inhere in the First Amendment.” (Applause: Conservatives)

On the other hand: “But the libertarian campaign finance law the Court has developed fails in the broader project vital to First Amendment jurisprudence: the sensitive accommodation of competing constitutional values.”  (Applause: Liberals)

→ The problem is that Citizens United represents an “unrelenting skepticism of legislators’ motives, a pathologically rigid doctrinal absolutism, and a naïve, unrealistic economic libertarianism and blindness to political corruption.”

The challenge: “How to understand the First Amendment, and deciding how it should blend libertarian, egalitarian, and democratic values, is among our most difficult constitutional questions.”

The warning: “There may be satisfaction in such intellectual absolutism, in painting in bright colors and with a broad brush. But a wiser path recognizes the difficulty of the normative issues at the heart of campaign finance law and the irreconcilable values that recent cases implicate.”

→ The plea: “This is not a plea for deciding any particular case one way or another. Indeed, as I stated at the outset, I believe that the Court rendered the correct judgment in favor of the right claimed by the corporation that sought to distribute a video critical of Hillary Clinton in Citizens United. This is instead a plea for greater judicial open-mindedness, sensitivity to nuance, and a measure of old-fashioned humility.”

→ The path: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality. The form that these regulations may take is properly policed by the federal judiciary . . .”

Question: Has Professor Tribe found some important common ground? A new day perhaps? Or has he, too, abandoned the values that for so long informed liberal thought? Yesterday repackaged? However you come me down, let the dialogue begin anew.

There is, of course, more (much more), and I urge readers to give serious thought to this thoughtful contribution to our free speech literature.

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FAN 36.3 (First Amendment News) A street named Carlin

Cardinal Carlin

Cardinal Carlin

UPDATED

Tomorrow New York City will rename a street to honor the late George Carlin, the famed comedian and inspiration for FCC v. Pacifica (1978), the infamous First Amendment case sustaining a broadcast ban on “7 dirty words.”

Although “George Carlin Way” will begin at Amsterdam and West 121st Street, because of construction the ceremony tomorrow will be one block away at Morningside Drive and West 121st Street.

 → This from Howard Wasserman: “The named block is actually not the block on which Carlin grew up, because the church there (where Carlin went to school) objected; the compromise was to move it across to Amsterdam Avenue.” [Source: go here]

  The dedication ceremony will begin at 1:00 PM.

Current line-up of speakers

The following speakers have yet to confirm:

220px-Seven_Dirty_Words_WBAIEvening Event

Tomorrow night at 7:30 PM, at Carolines on Broadway, there will be a very special night of laughter to pay tribute to the dean of counterculture comedians and to celebrate his newly minted status as a man of the streets. (I will be in NYC and plan to be at Carolines.)

Colin Quinn will host, with performances by Ted Alexandro, Kevin Bartini, Eddie Brill, Jim Norton, and special surprise guests.

For details, go here.

→ Hat tip to Josh Wheeler 

For a memorable passage from Justice William Brennan:

I find the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.

→ Related News Item: November 4, 2014 marks the 50th anniversary of Lenny Bruce’s New York obscenity conviction, for which he was posthumously pardoned on December 23, 2003.

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FAN 35.2 (First Amendment News) — Former NSA Director counsels against going after James Risen

Hey, I knew we were playing up against the line.

. . . I don’t understand the necessity to pursue Jim.

– General Michael Hayden

On Sunday October 12th, James Risen of the New York Times appeared on 60 Minutes. He was interviewed by Lesley Stahl. Below are some selected excerpts from that installment of the CBS news program.

Stahl:  Will you divulge your source?

James Risen on 60 Minutes with Lesley Stahl

James Risen on 60 Minutes with Lesley Stahl

Risen:  No, never; I’m not going to talk.

Stahl: Sometimes you get yourself in trouble.

Risen: [Chuckles] Yea, the government has been after me for a while now. . . .

Stahl: What was your first reaction when you realized that the New York Times was onto the NSA story?

General Michael Hayden: First reaction was this is not good news. . . . [The NSA surveillance practices] were warrantless but not unwarranted. It would have been irresponsible for NSA not to have done this in the immediate aftermath of the attacks of 9-11. . . . Hey, I knew we were playing up against the line. . . . Jim is going to go to jail, why? Because Jim wants to protect his sources. . . .

Stahl: What kept you from walking out [when your editors initially held back your story]? Read More

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FAN 35.1 (First Amendment News) — Creative Freedom & the First Amendment

On Wednesday, October 22, Freedom House and the Motion Picture Association of America, in support of Free Speech Week, will host a discussion on Creative Freedom and the First Amendment. The event will be held in Washington, D.C.

image001Panelists

Using current on-screen examples, the discussion will focus on how movies and television shows in the United States are powerful instruments that inform and enlighten us, advancing debates on crucial social and cultural issues. The creative freedom the First Amendment protects is fundamental to the ability of storytellers to tell these stories through television and film in America.

 Free Speech Week is an annual, non-partisan national event celebrating the value of freedom of speech.

→ For more information about the Creative Freedom event, contact Ivory Zorich at ivory_zorich@mpaa.org

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FAN 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case

Barry Richard, counsel for Florida Bar

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge.

As I mentioned, a petition for certiorari had been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

  1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
  2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
  3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

Additional information about the case is set out in FAN #25. Stay tuned for future developments.

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FAN 29 (First Amendment News) — Exceptional Freedom: How many exceptions are there to the First Amendment?

[W]e decline to carve out from the First Amendment any novel exception.                     – Chief Justice John Roberts (2010)

When we talk about exceptions to the First Amendment’s guaranty of freedom of expression, Justice Frank Murphy’s famous 1942 dictum in Chaplinsky v. New Hampshire comes to mind:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ―fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 

Note that the list of exceptions he offered was an incomplete one. To much the same effect as Chaplinsky, in his majority opinion in United States v. Stevens (2010) Chief Justice John Roberts declared:

From 1791 to the present, however, the First Amendment has ―permitted restrictions upon the content of speech in a few limited areas, and has never ―include[d] a freedom to disregard these traditional limitations.  . . . These historic and traditional categories [are] long familiar to the bar, . . . [and include] obscenity, . . . defamation, . . . fraud, . . . incitement, . . . and speech integral to criminal conduct . . . . [They] are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

Against that backdrop, the Chief Justice emphasized: “we decline to carve out from the First Amendment any novel exception.” He Unknownalso cautioned: “cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The question, of course, is exactly how many “well-defined and narrowly limited classes” of exceptions are there (Chaplinsky), or  precisely how many “historic and traditional categories” of speech fall outside of the First Amendment (Stevens)?

To answer that question it is important to note that not all of the categories listed by the Chief Justice are single-subject exceptions. For example, consider the “speech integral to criminal conduct” category. That exception itself consists of more than a few particularized exceptions. And then there are the other exceptions that were left unmentioned.

So many exceptions

Mindful of the above, and as I have noted elsewhere, here is a list of the additional (or more particularized) types of expression that have been deemed unprotected:

(1)       blackmail

(2)       bribery

(3)       misleading commercial expression

(4)       incitement to lawless action

(5)       expression that violates an intellectual property right

(6)       criminal conspiracy expression

(7)       threatening expressions

(8)       expression that endangers national security

(9)       insider trading expression

(10)     perjurious expression

(11)     harassment in the workplace expression

(12)     expression in contempt of court

(13)     plagiaristic expression

(14)     criminal solicitation (e.g., prostitution or murder for hire)

(15)     child pornography

(16)     speech that amounts to bullying

(17)     intentionally false speech likely to create a dangerous public panic

(18)     intentionally misrepresenting oneself as a government official

(19)  intentionally false material statements made to voters concerning authorship or endorsement of political campaign materials

(20)     certain kinds of intentionally false statements made about a political or public figure

(21)     certain kinds of prisoner expression

(22)     certain kinds of government employee expression

(23)     certain kinds of government funded expression

(24)     certain kinds of student expression

(25)     certain kinds of expression by those in the military

(26)     expression deemed secret owing to a private contract or law

(27)      certain kinds of expression expression that unfairly places another in a false light

(28)     intentional expression that causes emotional distress

(29)     expression in violation of anti-trust laws

(30)      certain kinds of expression that cause prejudicial publicity that interferes with a fair trial

(31)     intentionally disclosing the identity of secret government agents

(32)     certain kinds of expression that invade the privacy of another

(33)     certain kinds of expression limited by time, place, and manner restrictions

(34)     certain kinds of expression that involves intentional lying

(35)     certain kinds of expression by sitting judges

(36)     certain kinds of expression aired on the public airwaves

(37)     certain kinds of panhandling

(38)     certain kinds of telemarketing

(39)     certain kinds of speech harmful to minors

(40)     certain kinds of commercial solicitation (e.g. lawyers soliciting business)

(41)   certain kinds of expression concerning the unauthorized practice of some licensed profession (e.g., medicine or law)

(42)     certain kinds of intentional lying to government officials (e.g., lying to Congress while under oath or false police reports) and

(43)     certain kinds of evidence introduced into court and in courtroom expression governed by the rules of evidence.

And what of revenge porn & cyber harassment?

Are there more? Perhaps. Might some of the above ones now be deemed unconstitutional? Perhaps. That said, my point is that the lists offered in Chaplinsky and Stevens (among other Supreme Court opinions) give the impression that the number of exceptions to the First Amendment is actually far fewer than may well be the case.

In all of this, however, I do not mean to undermine a robust commitment to free speech freedom — a commitment well beyond what is fashionable in many circles of academia today. Still, if originalism is to be a significant and even determinative guide here, we must be duly mindful of its true dimensions. This is not to say the results reached by the Roberts Court in several First Amendment cases could not otherwise be justified, but rather that some of the Court’s originalist language needs to be more fully stated and explained.

Justices asked to review Secondary Effects case  Read More

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Dr. King on the First Amendment & the right to protest

Screen Shot 2014-08-14 at 11.21.51 PMMartin Luther King, Jr., April 3, 1968:

All we say to America is, “Be true to what you what you say on paper.” If I lived in China or even in Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights. 

See YouTube clip here.

→ See also the following books and articles:

  1. Harry Kalven, The Negro and the First Amendment (1965)
  2. David Garrow, Protest at Selma:Martin Luther King, Jr. and the Voting Rights Act of 1965 (1978)
  3. Andrew Mach, “Martin Luther King Jr.: 8 peaceful protests that bolstered civil rights,” Christian Science Monitor, Jan. 15, 2012
  4. Burke Marshall, “The Protest Movement and the Law,” 51 Virginia L. Rev. 785 (1965)
  5. Clark McPhail, David Schweingruber & John McCarthy, “Policing Protest in the United States: 1960-1995” in Policing Protest (1998) by  Donatella D. Porta, et al, eds.
  6. Lewis F. Powell, Jr., “A Lawyer Looks at Civil Disobedience,” 23 Wash. & Lee L. Rev. 205 (1966)
  7. Nicholas Katzenbach, “Protest, Politics and the First Amendment,” 44 Tulane L. Rev. 439 (1970)
  8. Ronald Krotoszynski, Jr. “Celebrating Selma: The importance of context in public forum analysis,” 104 Yale L. J. 1411 (1995)
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FAN 26 (First Amendment News) — Akhil Amar on the “First” Amendment

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. Akhil Amar

Professor Akhil Reed Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?'”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

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