Tagged: First Amendment law

1

FAN 106.1 (First Amendment News) Sheriff Dart Petitions Court — Contests Posner Opinion in “Adult Services” Ad Case

Michael F. Williams, lead counsel for Sheriff Dart)

Michael F. Williams (lead counsel for Sheriff Dart)

Cook County’s Sheriff Thomas Dart is back on the legal news with a cert. petition filed today in the Supreme Court (Dart v. Backpage.com). The Sheriff is being represented by Michael F. Williams (counsel of record) of Kirkland and Ellis. Also on the brief are Anita Alvarez (Cook County State’s Attorney), Paul A. Castiglione, Sisavanh B. Baker, and Jill V. Ferrara (Assistant State’s Attorneys). In other words, Cook County is spending some big money to contest Judge Richard A. Posner’s ruling in Backpage.com v. Dart (7th Cir., Nov. 30, 2015).

First the factsBackpage.com is the second largest online classified advertising website in the U.S., after Craigslist. Users post more than six million ads monthly in various categories, including buy/sell/trade, automotive, real estate, jobs, dating and adult. Users provide all content for their ads; Backpage.com hosts the forum for their speech. Sheriff Dart wanted to eliminate online classified advertising of “adult” or “escort” services. And why? As the Sheriff saw it, such ads were little more than solicitations for prostitution. He also argued that these ads facilitate human trafficking and the exploitation of children. Last June the Sheriff sent letters to the CEOs of Visa and Mastercard to “request” that they “cease and desist” allowing their credit cards “to be used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking.” It worked; the companies blocked the transactions. On August 21, 2015, a federal district court denied Backpage.com’s motion for a preliminary injunction, though it had previously granted a TRO in the case.

Back page appealed and prevailed.

Sheriff Thomas Dart

Sheriff Thomas Dart

The 7th Circuit Ruling: In true Posnerian form, the Judge’s opinion was blunt (“The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation”), skeptical of dubious claims (“[A]s explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States”), and not prudish in its discussion of adult sex (“One ad in the category “dom & fetish” is for the services of a “professional dominatrix”— a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix” [link omitted]).

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

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

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

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

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

 The Cert. Petition

 Counsel for Sheriff Dart advance two main arguments:

  1. “The Injunction Entered by The Seventh Circuit in This Case Impermissibly Restrains Petitioner’s Own Rights to Speak About Matters of Public Concern,” and
  2. “The Seventh Circuit Erred, in Conflict With Decisions of Other Federal Circuit Courts, in Holding the Mere Threat of Government Action, Without More, Could Establish an Unlawful Prior Restraint”

In the Sheriff’s cert. petition, Mr. Williams argues:

Ultimately, the Seventh Circuit directed the entry of an injunction against Sheriff Dart because credit card companies, voluntarily and independent of any supposed threat by the Sheriff, decided to cut ties with Backpage. The injunction restrains the Sheriff’s own protected speech on matters of public concern, and the injunction interferes with the Sheriff’s efforts to administer important policies on behalf of the people of Cook County. The court erred, in conflict with rulings by this Court and other federal court of appeals, in entering the injunction. The Sheriff respectfully asks this Court to grant the petition for writ of certiorari in order to address the important First Amendment issues raised here.

Robert Corn-Revere was lead counsel for Backpage in the Seventh Circuit.

stairway-to-heaven-1319562-m-720x340
2

FAN 106 (First Amendment News) The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Yesterday the Court handed down Heffernan v. City of PatersonIt was the 43rd First Amendment free expression opinion handed down by the Roberts Court (count includes per curiams). It was Justice Stephen Breyer’s fifth majority opinion while serving on that Court. That puts Justice Breyer tied with Justices Anthony Kennedy and Antonin Scalia, but still way behind the Chief Justice (15 majority/plurality opinions).

The Roberts Court & Government Employee Speech 

Heffernan  was the seventh case heard by the Roberts Court involving a First Amendment employee speech claim (initials = those of author of majority opinion):

  1. ™ Garcetti v. Ceballos (2006) [5-4, per AK] [government employee speech]
  2. ™ Locke v. Karass (2009) [9-0, per SB] [government employee unions]
  3. Knox v. Service Employees International Union [7-2, per SA] [government employee unions]
  4. Lane v. Franks (2014) [9-0 per SS] [government employee speech]
  5. Harris v. Quinn (2014) [5-4, per SA] [employee unions]
  6. Friedrichs v. California Teachers Association, et al  [4-4, per curiam] [employee unions]
  7. Heffernan v. City of Paterson (2016) [6-2, per SB] [government employee speech]

Note that while Chief Justice Roberts was in the majority in all of these cases, he never assigned an opinion to himself. The case was argued a month before Justice Antonin Scalia died, which means that if the Chief Justice were indeed in the majority, he probably assigned the opinion to Justice Breyer at that time. But consider in this regard what is set out below.

The Significance of a Scalia Vote?

Notably, Chief Justice Roberts voted to sustain the First Amendment claim in this government employee speech. This is significant given what he said in oral argument:

Well, but the ­­ the First Amendment talks about abridging freedom of speech, and I thought the case came to us on the proposition that he wasn’t engaging in speech at all. That he was not engaging in association, he was not engaging in trying to convey a message, he was just picking up a sign for his mother. And if that’s the basis on which the case comes to us, I’m not sure how he can say his freedom of speech has been abridged. . . . My point is that maybe this shouldn’t be a constitutional violation if there are adequate remedies to address what may ormay not be a First Amendment issue.

This point was echoed by Justice Antonin Scalia in oral arguments: “He wasn’t associating with anybody any more than he was speaking. He was doing neither one.”

Those are notable points, ones that can be said to go to the core of the issue in the case. Justice Clarence (joined by Justice Samuel Alito) spoke to this very point in his Heffernan dissent:

Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. . . . Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, . . . he cannot allege that his employer interfered with conduct protected by the First Amendment. 

If one were to stop the jurisprudential frame there, it adds up to four votes (Roberts, Scalia, Thomas & Alito) against the First Amendment claim. But, following Justice Scalia’s death, the tally blossomed into a six votes to sustain that claim. Think of it: after oral arguments the vote may have been 5-4, with the Chief on the dissenters’ side. That means that Ginsburg would have been the senior Justice and assigned the opinion to Breyer.  Following Justice Scalia’s death the vote would have then been 5-3.

The Significance of Government Motive & the Insignificance of Individual Intention

What made Heffernan a peculiar case (“it’s like a law school hypothetical” said Justice Alito in oral arguments) is the fact that the Petitioner Jefferey Heffernan never claimed that he intended to convey any message when he delivered a campaign sign for his mother. Fate being what it was, police officer Heffernan was demoted for his perceived political activity. That is, he never sought to convey any political message and thus, he argued, it was wrong for him to be disciplined for doing so.  That point proved determinative when the case was before the Third Circuit.  There Judge Thomas Vanaskie, writing for a unanimous panel, declared:

[W]e conclude that Heffernan has failed to raise a genuine dispute of material fact on this point. Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother. Consequently, the record is insufficient to allow a jury to return a verdict in Heffernan’s favor on his claim of retaliation based on the actual exercise of his right to freedom of association.

Against that backdrop, consider what Justice Ruth Bader Ginsburg said in oral arguments in an exchange with Thomas Goldstein (one of the counsel for the Respondent City):

Justice Ginsburg: ­­I thought –­ and unlike Justice Scalia — that the thrust of the FirstAmendment is operating on government. It saysgovernment, thou shalt not ­­ thou shalt not act on thebasis of someone’s expression, speech or belief.

Mr. Goldstein: Well, essentially all of the rights, individual rights in the Constitution, otherthan the antislavery provision, requires State action.They all talk about what the government can’t do.  But the government ­­. . . 

Justice Ginsburg: Yes, so here, thegovernment acted. No question they demoted the person. This was a detective, and they put him back on the beat.So the government acted. Why did they act? Because they thought that this person was engaging in politicalactivity.

Mr. Goldstein:. . . You described this in First Amendment terms, that if this was a speech case, which it used to be, rather than an association case, he would lose. It is well settled in this Court’s precedents that the threshold inquiry under Pickering is did the individual engage in the constitutionally protected activity?

Judging from the outcome in the case, the Ginsburg line of thinking won the day. Consider the following statement from Justice Breyer’s majority opinion:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitu- tionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea- son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

Motive matters. Hence (and to echo a point Justice Hans Linde made decades ago), the constitutional wrong is in the impermissible making of a law, or as in this case in the impermissible motive in government action. Or to quote from a 1981 article by Justice Linde (for whom I once clerked):

If government acts without a basis in valid law, the court need not find facts or weigh circumstances in the individual case. When a constitutional prohibition is addressed to lawmakers, as the First Amendment is, the role that it assigns to courts is the censorship of laws, not participation in government censorship of private expression.

* * Additional Commentary * * 

Campaign Finance Case Readied for en banc Hearing in DC Circuit Read More

0

FAN 105.1 (First Amendment News) Court rules 6-2 in favor of 1-A Claim in Government Employee Speech Case

Today the Court handed down its ruling in Heffernan v. City of PatersonThe vote was 6-2 with Justice Stephen Breyer writing for the majority and Justice Clarence Thomas (joined by Justice Samuel Alito) writing in dissent.

Mark Frost was the counsel of record for the Petitioner (joined by Professors Stuart Banner and Eugene Volokh)

→ Victor A. Afanador was the counsel of record for the Respondents (joined by Thomas Goldstein)

Here is how Justice Breyer framed the issue in the case and its resolution:

In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution”? 42 U. S. C. §1983. We hold that it did.”

The majority, however, limited the reach of its ruling:

“We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan’s em- ployers implemented violated the Constitution. There is some evidence in the record, however, suggest- ing that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it com- plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.”

Even so, Justice Thomas took exception:

“If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, be- cause Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under §1983. I respectfully dissent.”

The Court’s 2015-2016 First Amendment Docket

Cases Decided

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

Review Granted

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

Oral Arguments Schedule of Cases Already Argued

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

Pending Petitions*

  1. POM Wonderful, LLC v. FTC
  2. Scholz v. Delp

Review Denied

  1. Cressman v. Thompson
  2. Justice v. Hosemann 
  3. Electronic Arts, Inc. v. Davis
  4. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  5. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  6. Town of Mocksville v. Hunter
  7. Miller v. Federal Election Commission
  8. Sun-Times Media, LLC v. Dahlstrom
  9. Rubin v. Padilla
  10. Hines v. Alldredge
  11. Yamada v. Snipes
  12. Center for Competitive Politics v. Harris
  13. Building Industry Association of Washington v. Utter (amicus brief)

First Amendment Related Case

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

Freedom of Information Case

 The Court’s next Conference is on May 12, 2016.

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

stairway-to-heaven-1319562-m-720x340
0

FAN 105 (First Amendment News) Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech

[T]he exhibition of moving pictures is a business, pure and simple, originated and conducted for profit … not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion. Justice Joseph McKenna (1915), for a unanimous Court

Are paintings protected by the First Amendment?

What about music?

And photography and films?

Of course!  But wait, what about the words (and they are words) of the First Amendment?

Congress shall make no law . . .  abridging the freedom of speech, or of the press.

Recall that at first the Court rejected the idea that expression beyond words (verbal or printed) was entitled to constitutional protection — see Mutual Film Corp. v. Industrial Commission of Ohio (1915). Thankfully, that case gave constitutional way to Joseph Burstyn, Inc. v. Wilson (1952) and its progeny. But did either the logic or theory of the law ever catch up with its application?

Enter Harvard Law Professor Mark  Tushnet, University of Denver Law Professor Alan K. Chen and Duke University Law Professor Joseph Blocher. They have a new book coming out next year; its title: Free Speech Beyond Words: The Surprising Reach of the First Amendment (NYU Press, February 14, 2017). Here is an abstract:

Jackson Pollock (The Art Institute of Chicago)

Jackson Pollock (The Art Institute of Chicago)

“The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning.”

“As a legal matter, the Court’s conclusion is clearly correct, but its premises are murky, and they raise difficult questions about the possibilities and limitations of law and expression. Nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense, and sometimes do not even involve the transmission of articulable ideas. How, then, can they be treated as ‘speech’ for constitutional purposes? What does the difficulty of that question suggest for First Amendment law and theory? And can law resolve such inquiries without relying on aesthetics, ethics, and philosophy?”

“Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.”

See also, Justin Marceau & Alan K. Chen, “Free Speech and Democracy in the Video Age,” Columbia Law Review (2016).

 Related Literature  

Also Forthcoming: Stone on Sex . . . & the Constitution

When it comes to sexual expression, “it has taken us almost two centuries to get back to where we were at the time of the Founding.”Geoffrey Stone 

It has been in the works for a long time. I’m referring to Professor Geoffrey Stone’s next book: Sexing the Constitution.

It is a monumental work and will be published by Liveright (W.W.W. Norton). The book’s editor  is Philip Marino. (Norton published Professor Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (2005)).

Here is some advance publicity on the book, due out in April of next year.

Profesor Geoffrey Stone

Profesor Geoffrey Stone

Sexing the Constitution illuminates how the clash between sex and religion has defined our nation’s historyRenowned constitutional scholar Geoffrey R. Stone traces the evolution of legal and moral codes that have attempted to legislate sexual behavior from the ancient world to America’s earliest days to today’s fractious political climate. Stone crafts a remarkable, often thrilling, narrative in which he shows how agitators, moralists, legislators, and, especially, the justices of the Supreme Court have navigated issues as explosive and divisive as abortion, homosexuality, pornography, and contraception.

Overturning a raft of contemporary shibboleths, Stone reveals that at the time the Constitution was adopted there were no laws against obscenity and no laws against abortion before the mid-point of pregnancy. A pageant of historical characters, including Voltaire, Thomas Jefferson, Anthony Comstock, Margaret Sanger, J. Edgar Hoover, Phyllis Schlafly, and Justice Anthony Kennedy, enliven this landmark work that dramatically reveals how our laws about sex, religion, and morality reflect the paradoxes and cultural schisms that have cleaved our nation from its founding.

* * * * 

I asked Professor Stone if he might add a few words about the free-speech portion of the book.  Here is what he was  shared with me on that front:

9780674905559-usSexing the Constitution explores the relationship between sex, religion, and law from ancient times to the present. From the free speech perspective, the focus is, of course, on sexual expression. Sexing the Constitution shows how in the Greek and Roman world there were no limits to the explicitness of sexual expression, and that for the most part this remained true in Western culture through the Middle Ages and the Renaissance, despite a wide range of sexually explicit material.”

“English law did not recognize the concept of obscenity until the eighteenth century, and even then it was rarely invoked. Although sexual material was widely available in the American colonies, there were no prosecutions for obscenity, and, indeed, no laws against obscenity in the United States until the evangelical fervor of the Second Great Awakening in the early nineteenth century.”

Samuel Roth

Samuel Roth

“After the Civil War, in an era of severe moralism marked by the actions of Anthony Comstock, laws against sexual expression proliferated for the first time. These laws were so strict that they forbade any discussion of sex in any form and banned even the discussion of contraception. This suppression eventually led to sharp battles over the propriety of such restrictions in the late nineteenth and early twentieth centuries. For the most part, though, these battles were over the question of statutory interpretation rather than constitutional law.”

“The Supreme Court, of course, got involved in 1957 in the Roth case when the Court for the first time suggested that the regulation of sexual expression might violate the First Amendment. As Sexing the Constitution shows, through a combination of constitutional doctrine and the effects of technology, it has taken us almost two centuries to get back to where we were at the time of the Founding.”

Recipients of the 2016 Jefferson Muzzle Awards

Read More

stairway-to-heaven-1319562-m-720x340
2

FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

Unknown-1

Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More

7

FAN 102.3 (First Amendment News) Court Denies Review in Campaign Finance Case

Today the Court issued its orders list in which the Justices declined to hear the case of Justice v. Hoseman.

The issue in the case was whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.

The cert. petition was filed by the Institute for Justice with Paul Avelar as counsel of record for the Petitioners.

The Center for Competitive Politics (Allen Dickerson), the Cato Institute (Ilya Shapiro), and the Independence Institute filed an amicus brief on behalf of the Petitioners.

* * * *

The Court also denied review in a First Amendment related caseStackhouse v. Colorado (see below)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

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

Review Granted

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

Oral Arguments Schedule 

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

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Town of Mocksville v. Hunter
  6. Miller v. Federal Election Commission
  7. Sun-Times Media, LLC v. Dahlstrom
  8. Rubin v. Padilla
  9. Hines v. Alldredge
  10. Yamada v. Snipes
  11. Center for Competitive Politics v. Harris
  12. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

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

Freedom of Information Case

 The Court’s next Conference is on April 15, 2016.

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

0

FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
0

FAN (First Amendment News, Special Series) Newseum Institute to Host Event on Cell Phone Privacy vs National Security Controversy

images

Starting today and continuing through mid-June, I will post a special series of occasional blogs related to the Apple iPhone national security controversy and the ongoing debate surrounding it, even after the FBI gained access to the phone used by the terrorist gunman in the December shooting in San Bernardino, California.

Gene Policinski

Gene Policinski

This special series is done in conjunction with the Newseum Institute and a major program the Institute will host on June 15, 2016 in Washington, D.C.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

The June 15th event will be a moot court with seven Supreme Court Justices and two counsel for each side. The focus will be on the First Amendment issues raised in the case. (See below re links to the relevant legal documents).

→ Save the Date: Wednesday, June 15, 2016 @ 2:00 p.m., Newseum, Washington, D.C. (more info forthcoming).

The Apple-FBI clash was the first significant skirmish — and probably not much more than that — of the Digital Age conflicts we’re going to see in this century around First Amendment freedoms, privacy, data aggregation and use, and even the extent of religious liberty. As much as the eventual outcome, we need to get the tone right, from the start — freedom over simple fear. –Gene Policinski

Newseum Institute Moot Court Event

It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails.Melanie Newman (spokeswoman for Justice Department, 3-28-16)

As of this date, the following people have kindly agreed to participate as Justices for a seven-member Court:

The following two lawyers have kindly agreed to serve as the counsel (2 of 4) who will argue the matter:

→ Two additional Counsel to be selected.  

Nan Mooney and I will say more about both the controversy and the upcoming event in the weeks ahead in a series of special editions of FAN. Meanwhile, below is some relevant information, which will be updated regularly.

Apple vs FBI Director James Comey

President Obama’s Statement

Congressional Hearing

Documents

Screen Shot 2016-03-17 at 10.46.11 PM

Last Court Hearing: 22 March 2016, before Judge Sheri Pym

Podcast

Video

News Stories & Op-Eds

lockediphone5c

  1. Pierre Thomas & Mike Levine, “How the FBI Cracked the iPhone Encryption and Averted a Legal Showdown With Apple,” ABC News, March 29, 2016
  2. Bruce Schneier, “Your iPhone just got less secure. Blame the FBI,” Washington Post, March 29, 2016
  3. Katie Benner & Eric Lichtblau, “U.S. Says It Has Unlocked Phone Without Help From Apple,” New York Times, March 8, 2016
  4. John Markoff, Katie Benner & Brian Chen, “Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist,” New York Times, March 17, 2016
  5. Jesse Jackson, “Apple Is on the Side of Civil Rights,” Time, March 17, 2016
  6. Katie Benner & Eric Lichtblau, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” New York Times, March 15, 2016
  7. Kim Zetter, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” Wired, March 15, 2016
  8. Alina Selyukh, “Apple On FBI iPhone Request: ‘The Founders Would Be Appalled,‘” NPR, March 15, 2016
  9. Howard Mintz, “Apple takes last shot at FBI’s case in iPhone battle,” San Jose Mercury News, March 15, 2016
  10. Russell Brandom & Colin Lecher, “Apple says the Justice Department is using the law as an ‘all-powerful magic wand‘,” The Verge, March 15, 2016
  11. Adam Segal & Alex Grigsby, “3 ways to break the Apple-FBI encryption deadlock,” Washington Post, March 14, 2016
  12. Seung Lee, “Former White House Official Says NSA Could Have Cracked Apple-FBI iPhone Already,” Newsweek, March 14, 2016
  13. Tim Bajarin, “The FBI’s Fight With Apple Could Backfire,” PC, March 14, 2016
  14. Alina Selyukh, “U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns ‘A Diversion’,” NPR, March 10, 2016
  15. Dan Levine, “San Bernardino victims to oppose Apple on iPhone encryption,” Reuters, Feb. 22, 2016
  16. Apple, The FBI And iPhone Encryption: A Look At What’s At Stake,” NPR, Feb. 17, 2016
stairway-to-heaven-1319562-m-720x340
0

FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

0

FAN 101.3 (First Amendment News) Supreme Court Denies Review in Right of Publicity Case

In its order list today, the Supreme Court denied review in Electronic Arts, Inc. v. Davis. The issue in the case was whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.

See FAN 83: “Paul Smith Files Cert. Petition in Right of Publicity Case” (Nov. 4, 2016)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

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

Review Granted

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

Oral Arguments Schedule 

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

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

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

Freedom of Information Case

 The Court’s next Conference is on March 25, 2016.

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