Tagged: First Amendment law

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FAN 66.1 (First Amendment News) The Indecency Wars Continue — WDBJ TV opposes $325K fine proposed by FCC

The enormous fine proposed by the FCC is also an extraordinary burden on protected speech. The FCC’s largest base fine for other types of violations by broadcasters is $10,000. — Jeffrey A. Marks, President & General Manager of WDBJ

* *  * * 

Travis LeBlanc, chief of the FCC’s enforcement bureau, said that the agency’s action “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.” (Variety, March 23, 2015)

Yesterday lawyers for WDBJ Television filed an Opposition to a FCC Notice of Apparent Liability (NAL) against the station. The 55-page opposition was filed by Jack N. Goodman and Robert Corn-Revere. The case is titled In the Matter of WDBJ Television, Inc. (files #s: EB-IHD-14-00016819 & EB-12-IH-1363).

UnknownThe proposed FCC fine stemmed from a July 12, 2012 WDBJ newscast concerning a Roanoke County controversy over a former adult film star who had joined the local volunteer rescue squad. WDBJ covered the story and the dispute over the firing of a female volunteer. Parts of WDBJ’s story were illustrated from materials taken from the Internet, including some from an adult-film website.  “Due to equipment limitations,” Goodman and Corn-Revere argue, “station personnel were unable to see the full screen of the online material, and the eventual broadcast briefly displayed a small image of an erect penis at the extreme margin of the screen. The image appeared for 2.7 seconds during a three minute and ten second story, covered only 1.7 percent of screen at the far right edge, and prompted an immediate response from WDBJ once it became aware of the mishap.”

In response, on March 23, 2015 the FCC issued a NAL and a proposed fine of $325,000 — the maximum amount permissible under the Broadcast Decency Enforcement Act.

Dennis Wharton, spokesman for the National Assn. of Broadcasters, said, “NAB is disappointed with today’s remarkably punitive indecency fine proposed against WDBJ. Schurz Communications apologized for the fleeting image, which was clearly unintended. This unprecedented fine against a family-owned broadcaster with a demonstrated commitment to serving communities is wholly unwarranted.”  (VarietyMarch 23, 2015)

WDBJ’s lawyers contend that the FCC’s NAL “rests on incorrect factual premises” and that the Commission “misapplied its indecency standard to the WDBJ newscast.” As to the latter point, they make three basic arguments:

  1. “The newscast was not graphic and explicit under Commission precedent”
  2. “The broadcast did not dwell on or repeat sexual material,” and
  3. “The broadcast did not seek to pander or titillate.”
Jack N. Goodman

Jack N. Goodman

Goodman and Corn-Revere also maintain that the FCC “lacks a constitutionally sound test for indecency.” In this regard, they offer three basic arguments:

  1. “The Supreme Court neither upheld nor ratified the FCC’s indecency policy” (“The constitutional questions left open in Fox must be addressed.”)
  2. “Devising a constitutional policy to regulate broadcast indecency requires great restraint” (The FCC must adhere to the First Amendment” and “Pacifica’s restrained enforcement approach is constitutionally required.”) and
  3. “As applied to WDBJ, the proposed fine violates the First Amendment.”
Robert Corn-Revere

Robert Corn-Revere

Additionally, Goodman and Corn-Revere contend that the FCC’s NAL “articulates an erroneous and unconstitutional standard for willfulness. On this point they contend that the FCC’s NAL is unlawful insofar as it “proposes to penalize WDBJ for an alleged indecency violation that was neither ‘willful” nor ‘repeated,’ as required by 47 U.S.C.  503 (b)(1).”

Finally, they argue that even if the Commission “could find that WDBJ violated the indecency policy, the proposed [fine] should be vastly reduced.” Here Goodman and Corn-Revere maintain that the FCC’s NAL “sets out various reasons — many of which are incorrect — for a [maximum fine], but utterly fails to explain why it is appropriate to impose a [fine] more than forty-six times the base amount for the inadvertent inclusion in a news program of a depiction of a sexual organ for less than three seconds.” As for the enhanced fines allowed for under the Broadcast Decency Enforcement Act of 2005, they argue that “Congress did not attempt to establish [the $325,000 fine] as the minimum or even the expected [fine], or to indicate any intent to override the Commission’s normal decision with respect to the amount of a [fine] in any particular case.”

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FAN 65.1 (First Amendment News) Court vacates & remands three 1-A cases

When it issued its orders list today, the Supreme Court did the following:

  1. In Berger v. American Civil Liberties Union of North Carolina it granted the petition for certiorari; the judgment is vacated, and the case is remanded to the United States Court of of Appeals for the Fourth Circuit for further consideration in light of Walker v. Sons of Confederate Veterans (2015).
  2. In Thayer v. City of Worcester the petition certiorari was granted; the judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit for further consideration in light of Reed v. Town of Gilbert (2015), and
  3. In Central Radio Co., Inc. v. City of Norfolk the petition certiorari was granted;the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Reed v. Town of Gilbert (2015).

The Court’s 2014-2015 Free Expression Docket

[last updated: 6-29-15 — what remains on the docket will either be resolved at “clean up” conference this Term or dealt with in late September when the Court has a “long conference.”]

Cases Decided 

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

Pending Petitions*

  1. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  2. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. ProtectMarriage.com-Yes on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. 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.   

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FAN 65 (First Amendment News) Does Justice Thomas believe in a race-hate exception to the First Amendment?

The Ku Klx Klan marched frequently in Savannah [where Clarence Thomas grew up], and Klan members dominated the police ranks of the 1930s, ’40s, and ’50s . . . Ken Foskett, Judging Thomas: The Life & Times of Clarence Thomas (2004)

As a child in the Deep South, I’d grown up fearing the lynch mobs of the Ku Klux Klan . . . . Clarence ThomasMy Grandfather’s Son: A Memoir (2007)

One has to wonder whether his vote was not at least in some measure affected by the particular license plate at issue — displaying the Confederate flag. David Cole, quoted in the National Law Journal, June 22, 2015

If you would better understand Justice Clarence Thomas’s vote in the Confederate license-plate case handed down last week, it may be helpful to turn the clock back to December 11, 2002. That was a rare moment in the modern history of the Supreme Court. For it was one of the few times that Justice Thomas spoke up during oral arguments. The case was Virginia v. Black (audio here). As revealed in the transcript of that case involving a First Amendment challenge to a state cross-burning statute, Justice Thomas expressed himself boldly when he questioned Michael Dreeben of the Department of Justice. “Thomas spoke [i]n a deep, booming, voice, shaking with emotion”:

Justice Clarence Thomas (Randy Snyder, AP)

Justice Clarence Thomas (Randy Snyder, Associated Press)

Justice Thomas: “[I]t’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and . . . the Ku Klux Klan,  and this was a reign of terror and the cross was a symbol of that reign of terror. . . [Wasn’t] that significantly greater than [any] intimidation or a threat?”

Mr. Dreeben: “Well, I think they’re coextensive, because it is –“

Justice Thomas: “Well, my fear is, Mr. Dreeben, that you’re actually understating the symbolism [and] the effect of the cross, the burning cross. I indicated, I think, in the Ohio case, that the cross was I indicated, . . . that the cross was not a religious symbol and that it . . . was intended to have a virulent effect.  And . . .  I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.”

Justice Thomas was equally forceful in his published dissent in that First Amendment case: “‘The world’s oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was organized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States.” M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991). To me, the majority’s brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its dislikes, uses the most brutal of methods.”

In the News

Judge Andrew Napolitano: “NAACP’s call to prosecute hate groups violates First Amendment – hate speech is protected,Bizpac Review, June 23, 2015 (Fox News video clip)

It is true, nonetheless, that Justice Thomas signed onto Justice Antonin Scalia’s majority opinion in R.A.V. v. City of St. Paul (1992). That case involved a successful First Amendment challenge to a state law prohibiting the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” (Justice Thomas was silent during oral arguments in R.A.V.)

In his dissent in Virginia v. Black, howeverJustice Thomas sought to disassociate himself from any expansive reading of R.A.V.: “I believe that the majority errs in imputing an expressive component to the activity in question . . . (relying on one of the exceptions to the First Amendment’s prohibition on content-based discrimination outlined in R. A. V. v. St. Paul) . . . . In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means.” But there was more here than adherence to precedent; there was the matter of understanding the nature of bigotry: “In every culture,” wrote Thomas, “certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane. I believe that cross burning is the paradigmatic example of the latter.”

And then there was his vote and concurrence in Capitol Square Review & Advisory Board v. Pinette (1995), wherein he wrote: “I join the Court’s conclusion that petitioner’s exclusion of the Ku Klux Klan’s cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.”

1000Admittedly, there any number of reasons (nuanced ones) that might explain Justice Thomas’s votes in R.A.V. and Pinette, his dissent in Virginia v. Black, and his vote in the 5-4 ruling in Walker v. Sons of Confederate VeteransBut in light of that vote, and mindful of Justice Samuel Alito’s compelling dissent in Walker, one wonders: Could it be that lingering beneath all of this is some sympathy for a kind of a race-hate exception to the First Amendment? I assert nothing definitive here; I am only suggesting that there may be something in Thomas’s thinking that could allow for an exception to current First Amendment doctrine. Or consider this: Might racial bigotry be an important factor in Justice Thomas’s application of judicial formulas such as the incitement test?  In that regard, one would think that Justice Thomas might well agree with a point Justice Elena Kagan (who was in the majority) made during oral arguments in Walker:

Mr. James George: “Well, the ­­ this Court’s rule ­­ law on incitement, going back to Brandenburg v. Ohio and the Ku Klux Klan rally that this Court decided was not incitement, it ­­ is pretty thin at this point in our history, because I don’t know what the rule of incitement would be today.”

Justice Kagan: “No, but Mr. George, just the worst of the worst, whether it’s the swastika or whether it’s the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is provoking violence of some kind. You know, somebody is going to ram into that car . . . .”­­

Similarly, Justice Thomas might well approve of the following statement made during oral arguments by Justice Stephen Breyer (author of the majority opinion in Walker): “Now, is there something to be said for Texas? Yes. What they’re trying to do is to prevent their official imprimatur from being given to speech that offends people.” Not just any offense, but a racial offense. It is precisely that kind of racial offense that motivates the current campaign in South Carolina to remove the Confederate flag from the state capitol grounds.

While his early votes in cases such as R.A.V. and Pinette suggest that race is not a determinative factor in Justice Thomas’s First Amendment jurisprudence, since 2002 there seems to have been shift in his view. Both his dissent in Virginia v. Black and his vote in Walker may indeed be signs of that purported shift. In the earlier, pre-Black cases, Justice Thomas voted to sustain the First Amendment claim but then voiced his disapproval of the bigoted speech at issue. In the post-Black cases, however, Justice Thomas voted to deny the First Amendment claim in such cases.

Of course, there is a good dollop of speculation here, which is therefore not beyond fair challenge. That said, sometimes it is easy to be oblivious to the obvious, to that which transcends niceties and nuances. And that something may be a key factor in Justice Thomas’s constitutional take on race-hate speech and the First Amendment. Again, I do not offer this as a hard-and-fast conclusion, but rather as something to consider — think of it as a possibility waiting to be proven.

Professor Scott Gerber

Professor Scott Gerber

Given my reservations, I invited Professor Scott Gerber, author of First Principles: The Jurisprudence of Clarence Thomas (2002), to comment on my hypothesis: “I agree with your perceptive observation about Justice Thomas’s approach to race-hate speech and the First Amendment,” he told me. “Indeed, Justice Thomas has come as close as any member of the Court ever has to accepting the Critical Race Theory approach to the issue. I have long mentioned this to my students when I teach Virginia v. Black, and I made a similar observation in a symposium essay I wrote on Justice Thomas’s First Amendment jurisprudence. The Court’s recent Confederate license plate decision provides additional support for this conclusion, and it also reminds us of how sophisticated Justice Thomas’s thinking is, especially on matters of race.”

 See Garrett Epps, “Clarence Thomas Takes On a Symbol of White Supremacy,” The Atlantic, June 18, 2015

See also Adam Clymer, “About That Flag on the Judge’s Desk,” New York Times, July 19, 1991

First Amendment Opinions by Justice Thomas

The following are the First Amendment majority opinions that Justice Thomas authored during his tenure on the Roberts Court re First Amendment free expression issues and related claims:
  1. Reed v. Town of Gilbert (2015) (vote: 9-0)
  2. Reichle v. Howards (2012) (vote: 8-0)
  3. Washington State Grange Washington State Rep. Party (2008) (vote: 7-2)

Some of his more notable separate opinions during this same period include his opinions in:

  1. McCutcheon v. FEC (2014) (concurring in the judgment)
  2. Lane v. Franks (2014) (concurring)
  3. Borough of Duryea v. Guarnieri (2011) (concurring in the judgment)
  4. Citizens United v. FEC (2010) (concurring & dissenting in part)
  5. Milavetz, Gallop & Milavetz v. United States (2010) (concurring in part & concurring in the judgment)
  6. Morse v. Frederick (2007) (concurring)
Latest Commentaries on 2014-2015 First Amendment cases

Read More

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FAN 64.1 (First Amendment News) Court Hands Down License-Plate Case — 5-4 Rejects 1-A Claim

1000Earlier today the Court handed down its ruling in Walker v. Sons of Confederate VeteransThe vote was 5-4 with Justice Stephen Breyer writing for the majority and Justice Samuel Alito in dissent (joined by the Chief Justice and Justices Scalia and Kennedy). In an unusual twist, Justice Clarence Thomas voted with the Court’s liberal bloc.

The Court held that Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Specifically, the Court ruled that

  1. When the government speaks it is not barred by the Free Speech Clause from determining the content of what it says, and
  2. The Court’s precedents regarding government speech provide the appropriate framework through which to approach the case

“The fact that private parties take part in the design and propagation of a message,” wrote Breyer, “does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider.” He added: “Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech.”

Writing in dissent, Justice Alito argued: “The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the distinction between government speech and private speech is critical. The First Amendment “does not regulate government speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995).”

Later, Alito argued that the majority’s “capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

Commentary: Ilya Shapiro, Supreme Court Allows Texas to Offend the First Amendment,” Cato Institute, June 18, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-18-15]

Cases Decided 

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

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.)

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. ProtectMarriage.com-Yes on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. 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.   

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FAN 64 (First Amendment News) More on the Roberts Court & the First Amendment — the Women Justices

How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.

In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:

  • Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
  • Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
  • Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).

Now onto the tallies in First Amendment free expression cases:

Number of Majority/Plurality Opinions

  • Justice Ginsburg: 3 out of 39 [Roberts = 13 & Kennedy & Scalia 5 each during same period]
  • Justice Sotomayor: 2 out of 23 [Roberts = 9 & Kennedy = 4 during same period]
  • Justice Kagan: 0 out of 15* [Roberts = 6 & Kennedy = 3 during same period] [*EK did not participate in 2 of the 17 cases decided during her tenure]

Number of Separate Opinions

  • Justice Ginsburg: 5 out of 39 (2 dissenting opinions, 1 dissenting & concurring in part & 2 concurring opinions)
  • Justice Sotomayor: 2 out of 23 (2 concurring opinions)
  • Justice Kagan: 2 out of 15 (2 dissenting opinions) [*EK did not participate in 2 of the 17 cases decided during her tenure]

Total Number of Opinions by RBG, SS & EK

  • 14 (includes total majority & separate opinions) [By contrast: CJ Roberts alone has authored 13 majority/plurality opinions]

Justice Ginsburg’s majority opinions

  1. Christian Legal Society v. Martinez (5-4, 2010) (1-A claim denied)
  2. Golan v. Holder (6-2, 2012) (1-A claim denied)
  3. Wood v Moss (9-0, 2014) (1-A claim denied)

Justice Sotomayor’s majority opinions

  1. Milavetz, Gallop, & Milavetz v. United States (9-0, 2010) (1-A claim denied)
  2. Lane v. Franks (9-0, 2014) (1-A claim sustained)

Thus, in the 15 such cases in which all the women Justices participated, they authored only one majority opinion (Lane v. Franks). (Justices Ginsburg and Sotomayor participated in 17 such cases during the same period and the number of majority remained the same.)

Record re 5-4 Majority/Plurality Opinions: Of the eleven 5-4 Roberts Court majority or plurality opinions in First Amendment free expression cases, only one was authored by any of the Court’s female members (Justice Ginsburg). There were six 5-4 judgments during Justice Sotomayor’s tenure, and four such judgments during Justice Kagan’s tenure.

(CJ Roberts leads in this area with 5 such opinions followed by Justices Kennedy and Alito with two apiece.)

Justice Ginsburg’s separate opinions Read More

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FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015

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FAN 63.2 (First Amendment News) — Court denies review in compelled ultrasound image abortion case — First Amendment claim stands

Today the Court released its orders list. The Justices denied review in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial.

The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.

The Fourth Circuit stuck down the law (see here) on First Amendment grounds. The lower court opinion was authored by Circuit Judge J. Harvey Wilkinson.

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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

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[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

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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

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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