Tagged: First Amendment law

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FAN 56.1 (First Amendment News) Constitutional & Criminal Law Experts File Brief Defending Gov. Rick Perry — First Amend. & Other Defenses Raised

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This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:

Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.

Gov. Rick Perry

Gov. Rick Perry

The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.

One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.

The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call  for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).

 See here re video of Gov. Perry’s Aug. 16, 2014 press conference

See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment

Counsel for Gov. Perry on appeal: Tony BuzbeeDavid Botsford & Thomas R. Phillips (Appellant’s brief here)

Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed  in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:

  1. “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
  2. “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”

The 18 who signed onto the amicus brief are:

  • Floyd Abrams (First Amendment lawyer)
  • Michael Barone (Resident Fellow at the American Enterprise Institute)
  • Ashutosh Bhagwat (UC Davis law professor)
  • Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
  • Paul Coggins (former U.S. Attorney for the Northern District of Texas)
  • Alan Dershowitz (Harvard law professor)
  • Raul A. Gonzalez (Former Justice, Texas Supreme Court)
  • James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
  • Daniel Lowenstein (Emeritus UCLA law professor)
  • Michael W. McConnell (Stanford law professor)
  • John T. Montford (Former District Attorney for Lubbock County, TX)
  • Michael Mukasey (Former U.S. Attorney General & former federal court judge)
  • Theodore B. Olson (Former Solicitor General of the United States)
  • Harriet O’Neill (Former Justice, Texas Supreme Court)
  • Nathaniel Persily (Stanford law professor)
  • Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
  • Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
  • Eugene Volokh (UCLA law professor)

The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. – Alan Dershowitz (Aug. 18, 2014)

Free Speech Claims

James C. Ho (lead counsel)

James C. Ho (lead counsel)

The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions.  “[H]e has every right to do just that,” they contend.

Core Political Speech: “A political official,” they add, “has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).”

Parade of Horribles: “The consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected—and exceedingly common—political speech.”

Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”

Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”

 After offering various other free speech challenges, the authors of the amicus brief point out that

Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.

Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”

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FAN 56 (First Amendment News) Floyd Abrams Signs Contract to do Third Book on Free Speech

Floyd Abrams

Floyd Abrams

If only he didn’t so much enjoy the lawyering life, Floyd Abrams might have been a law professor. For he surely savors publishing books and articles. Witness his Speaking Freely: Trials of the First Amendment (Penguin, 2006), followed by his Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013) — this in addition to numerous law review articles and op-eds (see here).

Now, only a little more than a year since his last book was published, Mr. Abrams has signed a contract to do yet another book on free speech. Its title: Why the First Amendment Matters. The book will be a part of the “Why X Matters” series published by Yale University Press. Other works in that series include Mark Tushnet’s Why the Constitution Matters (2011) and Louis Begley’s Why the Dreyfus Affair Matters (2010).

The work will be in the 30,000-40,000 words range with a submission date of November 15, 2015. Steve Wasserman is Abrams’ editor. Mr. Wasserman is the former editor of the Los Angeles Times Book Review and served as the editorial director of Times Books and publisher of Hill & Wang, an imprint of Farrar, Straus & Giroux. He is a past partner of the Kneerim & Williams Literary Agency and is currently the executive editor at large for Yale University Press (he specializes in trade publications).

The 78-year-old Abrams shows no signs of retiring anytime soon and continues to manage a full workload (and then some) as a practicing lawyer. That said, he still has a ways to go to top the publishing record of another First Amendment lawyer, Theodore Schroeder (1864-1953) — the co-founder of the Free Speech League (the precursor to the ACLU) and the author of several books on free speech.  To be fair, however, Schroeder was more of a writer and activist than a litigator, so he did not have to worry about the demands of being a full-time practitioner.

 See also Floyd Abrams, “Libert is Liberty” (March 16, 2015 speech at Temple University Law School)

Go here for a list of practicing lawyers who have written books on free speech.

 Forthcoming Event: Floyd Abrams Institute: Freedom of Expression Scholars Conference # 3 (Saturday, May 2, 2015 – 8:15 a.m. to Sunday, May 3, 2015 – 5:15 p.m.) (Mr. Abrams will be in attendance)

Hillary Clinton: ‘I would consider’ anti-Citizens United amendment

The movie that gave rise to the Citizens United case

The movie that gave rise to the Citizens United case

This from an MSNBC news report: “Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. ‘I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,’ she said in response to a question on the measure.”

“Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. “I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,” she said in response to a question on the measure.”

→ See also YouTube video clip here.

Garry Trudeau Takes Aim at Charlie Hebdo — Critics Fire Back  Read More

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FAN 55.1 (First Amendment News) “American Sniper” Cancelled at U. Michigan — part of “speech-destroying storm” says Floyd Abrams

UnknownAccording to a news report in the Michigan Daily, a showing of Clint Eastwood’s box-office blockbuster American Sniper has been cancelled at the University of Michigan.

“The Center for Campus Involvement announced Tuesday afternoon they would cancel a planned showing of American Sniper at UMix following a student petition over the depiction of certain communities in the film. . [T]he organization said the choice was made in response to concerns raised by students about the film in the petition.”

Unknown“‘Student reactions have clearly articulated that this is neither the venue nor the time to show this movie,’ the statement read. ‘We deeply regret causing harm to members of our community, and appreciate the thoughtful feedback provided to us by students.'”

“Mekkaoui, who is a a member of Students Allied for Freedom and Equality and the Middle Eastern and Arab Network on campus, said she found the choice of film disconcerting because of its depictions of the Iraq War and residents of the Middle Eastern and North African region. . . ‘As a student who identifies as an Arab and Middle Eastern student, I feel that ‘American Sniper’ condones a lot of anti-Middle Eastern and North African propaganda,’ Mekkaoui said.”

100toys62Writing in The Daily Caller, Rachel Stoltzfoos reports that “instead of showing American Sniper, The Center for Campus Involvement will instead show Paddington Bear at the event Friday, which is part of a program dedicated to providing students with alcohol-free Friday nights.”

Ms. Stoltzfoos also noted that “conservative students started their own petition in response to a decision Tuesday by The University of Michigan at Ann Arbor to cancel a planned screening of American Sniper after a few hundred students said the film made them feel uncomfortable and unsafe. . . So far the petition has 111 signers. ‘[American Sniper] is not anti-Muslim by any means,’ UM YAF chapter Chairman and national board member Grant Strobl told The Daily Caller News Foundation. ‘It’s anti-radical Islam and that’s something that all religions — Muslims, Christians and everybody — can agree on, because our troops are fighting overseas for the freedom of all people.”

In response to the cancellation, Floyd Abrams, a noted First Amendment lawyer, stated: “Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

See also:

  1. Carol Noah, “Student launches petition to reverse decision to cancel UMix film showing,” April 8, 2015
  2. Ibrahim Ijaz, “Letter to the Editor: Love for all, hatred for none,” Feb. 15, 2015
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FAN 55 (First Amendment News) Another Sign Case Comes to the Court

The “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.” — Justice John Paul Stevens, Kelo v. City of New London (2005)

Screen Shot 2015-04-06 at 11.17.08 PMThe Court currently has a sign case before it, one that was argued on January 12th. That case is Reed v. Town of Gilbert. Now it has another one just presented to it: Central Radio Co., Inc. v. City of NorfolkHere is how the petition opens:

“Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.”

The two issues presented to the Court are:

  1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?
  2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

B y a 2-1 margin, the Fourth Circuit Court of Appeals answered both of those questions “yes” and thus denied the First Amendment claim. Judge Barbara M. Keenan wrote the majority opinion which was joined in by Judge G. Steven Agee with Judge Roger Gregory dissenting in part.

Among other things, in her majority opinion Judge Keenan observed: “It is undisputed here that the plaintiffs’ 375-square-foot banner would comport with the City’s sign code if the banner were reduced to a size of 60 square feet. We recently have deemed such an alternative to be adequate upon comparable facts.’ And also this: “Even assuming, without deciding, that the City’s past refusal to enforce strictly the sign code constituted evidence of discriminatory effect, dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.”

Michael E. Bindas

Michael E. Bindas

Judge Gregory took exception to the majority’s content-discrimination analysis: “Why is it that the symbols and text of a government flag,” he argued, “do not affect aesthetics or traffic safety and escape regulation, whereas a picture of a flag does negatively affect these interests and must be subjected to size and location restrictions? I see no reason in such a distinction.” And also this: “This case implicates some of the most important values at the heart of our democracy: political speech challenging the government’s seizure of private property – exactly the kind of taking that our Fifth Amendment protects against. If a citizen cannot speak out against the king taking her land, I fear we abandon a core protection of our Constitution’s First Amendment. Here, Central Radio spoke out against the king and won.”

From Petitioner’s Brief

     This Court’s review is needed to resolve a longstanding, deep division among the courts of appeals over an important and recurring question of First Amendment law: whether a sign code that, on its face, draws content-based distinctions is nevertheless content-neutral simply because the government disclaims a censorial motive or proffers a content- neutral justification for the code. That question has confounded the lower courts ever since this Court’s sharply fractured decision in Metromedia, Inc. v. City of San Diego (1981), failed to yield an answer. As early as 1994, then-Judge Alito noted this confusion and the need for “the Supreme Court [to] provide[] further guidance.” Rappa v. New Castle Cnty. (3d Cir. 1994) (Alito, J., concurring). Then-Professor Kagan similarly observed that this issue is “calling for acknowledgment by the Court and an effort to devise a uniform approach.” Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup. Ct. Rev. 29, 77 (1992).

     If this Court resolves this issue in Reed v. Town of Gilbert and does so in a way that calls into question the Ninth Circuit’s approach to assessing content neutrality – the same approach the Fourth Circuit followed in this case – then an order granting certiorari, vacating the Fourth Circuit’s decision, and remanding this case will be warranted. If, on the other hand, this Court does not resolve the issue in Reed, it should grant certiorari to resolve it now.

 Counsel for Petitioner: Michael E. Bindas

→ Randy Barnett, “Can a city suppress speech protesting eminent domain?,” Volokh Conspiracy, April 2, 2015

 Press Conference re filing of lawsuit (May 10, 2012) (YouTube)

Howard Kurtz on “Intolerance” Read More

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FAN 54.1 (First Amendment News) Supreme Court: Latest Orders List — Free Expression Cases Remain on Docket

The Court just released its latest orders list and took no action on the pending petitions listed below.

  The next Court Conference is scheduled for April 17th and oral arguments are scheduled for April 20th.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[updated: 4-6-15]

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (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
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. ProtectMarriage.com-Yes on 8 v. Bowen
  6. Clayton v. Niska
  7. Pregnancy Care Center of New York v. City of New York 
  8. City of Indianapolis, Indiana v. Annex Books, Inc.
  9. Ashley Furniture Industries, Inc. v. United States 
  10. Mehanna v. United States
  11. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  12. Vermont Right to Life Committee, et al v. Sorrell
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FAN 54 (First Amendment News) Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case

Robert S. Reynolds (credit: Richmond Times-Dispatch)

Robert Reynolds (credit: Richmond Times-Dispatch)

Somehow this one slipped by me. Thanks to Joseph P. Rapisarda, Jr. (the county attorney in the case), however, I now know of it and of Chief Judge William Traxler’s opinion in Reynolds v. Middleton (4th Cir., Feb. 24, 2015).

The case involves a homeless man (Robert S. Reynolds) who begged for money in Henrico County, Virginia. (A panhandling First Amendment case is currently pending before the Supreme Court: Thayer v. City of WorcesterThe petition was distributed for Conference of January 9, 2015.)

In a world where commercial speech is the coin of the realm, Mr. Reynolds looked to the First Amendment to aid the cause of his life-sustaining speech. To that end, he challenged a newly enacted local ordinance, which provides:

Sec. 22-195. Distributing handbills, soliciting contributions or selling merchandise or services in highway.

(a) It shall be unlawful for any person while in the highway to:

(1) Distribute handbills, leaflets, bulletins, literature, advertisements or similar material to the drivers of motor vehicles or passengers therein on highways located within the county.

(2) Solicit contributions of any nature from the drivers of motor vehicles or passengers therein on highways located within the county.

(3) Sell or attempt to sell merchandise or services to the drivers of motor vehicles or passengers therein on highways located within in the county.

(b) For purposes of this section, the term “highway” means the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.

Brian Burgess

Brian Burgess

At first he was unsuccessful; his case was dismissed by a federal judge. Thanks to the appellate work of Brian Timothy Burgess (a former Sotomayor law clerk) and the ACLU, Reynolds did rather well in the Fourth Circuit (see CBS video clip). Here are a few excerpts from Chief Judge Traxler’s opinion:

  1. There is no question that panhandling and solicitation of charitable contributions are protected speech. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013). There is likewise no question that public streets and medians qualify as “traditional public forum[s].” Id. at 555; see Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en banc) (“Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora.”).
  2. The government’s power to regulate speech in a traditional public forum is “limited, though not foreclosed.” Clatterbuck, 708 F.3d at 555. Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny — that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert. denied, 135 S. Ct. 183 (2014). A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
  3. In our view . . . the Supreme Court’s recent decision in McCullen v. Coakley clarifies what is necessary to carry the government’s burden of proof under intermediate scrutiny. McCullen involved a First Amendment challenge to a Massachusetts buffer-zone statute that prohibited standing on a “public way or sidewalk within 35 feet of an entrance or driveway” of an abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench trial on stipulated facts, the district court upheld the statute, and the First Circuit affirmed. The Supreme Court applied intermediate scrutiny — the same standard we apply in this case — and reversed.
  4. We draw several lessons from the Court’s decision in McCullen. First, the Court’s discussion of whether the statute furthered an important governmental interest confirms that the existence of a governmental interest may be established by reference to case law. Second, the Court’s flat declaration that “[t]he buffer zones clearly serve these interests” indicates that objective evidence is not always required to show that a speech restriction furthers the government’s interests. Finally, the Court’s rejection of the Commonwealth’s narrow-tailoring arguments makes it clear that intermediate scrutiny does indeed require the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary; argument unsupported by the evidence will not suffice to carry the government’s burden.

The Chief Judge concluded his opinion as follows:

Although we have concluded that the County’s evidence failed to establish that the Amended Ordinance was narrowly tailored, we believe the proper course is to vacate and remand. Our analysis in this case was driven by the Supreme Court’s decision in McCullen, which was issued after the district court’s ruling in this case. As we have explained, McCullen clarified the law governing the evidentiary showing required of a governmental entity seeking to uphold a speech restriction under intermediate scrutiny. Because the parties did not have McCullen’s guidance at the time they prepared their cross — motions for summary judgment, we believe the County should have an opportunity to gather and present evidence sufficient to satisfy McCullen’s standard. Accordingly, we hereby vacate the district court’s order granting summary judgment to the County and remand for further factual development and additional proceedings as may be required (footnote omitted).

Note: Since “the Henrico ordinance has not been invalidated,” said Burgess, “panhandlers still could be criminally charged.”

See A. Barton Hinkle, “There’s No Begging Exception to the First Amendment,” Reason.com, March 4, 2015

 See Arizona Senate Debates Panhandling Bill,” NAZToday, March 25, 2015 (YouTube video)

See also Sara Rankin, “A Homeless Bill of Rights,” Seton Hall Law Review (forthcoming, 2015).  

Balkin & Redish Discuss Commercial Speech at First Amendment Salon Read More

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FAN 53.1 (First Amendment News) U. Maryland Law to Host Conference: “The Impact of the First Amendment on American Business”

e5eb96fc377fcf9f7e18eb56d245dca1The 2015 Symposium (March 27th), “The Impact of the First Amendment on American Businesses,” will facilitate a discussion on the effects and consequences of First Amendment jurisprudence on businesses. The symposium will specifically cover the areas of commercial speech, religious exemptions for businesses, and rights of businesses to use technology appropriately. This event will be located at University of Maryland Francis King Carey School of Law, and is open to anyone interested in attending, including students, lawyers, and scholars.

Welcome and Introductory Remarks
Dean Donald TobinUniversity of Maryland Francis King Carey School of Law

Keynote Speaker 1
Travis LeBlanc, Federal Communications Commission

Panel 1: First Amendment and Commercial Speech Relating to Health

Jane Bambauer, University of Arizona School of Law
Adam Candeub, Michigan State University College of Law
Stephanie Greene, Boston College & Greene LLP
Kathleen Hoke, University of Maryland Francis King Carey School of Law
Wendy Wagner, University of Texas at Austin School of Law

Panel 2: First Amendment and Technology

Hillary Greene,  University of Connecticut School of Law
James Grimmelmann, University of Maryland Francis King Carey School of Law
Glenn Kaleta, Microsoft Corporation
Renee Knake, Michigan State University College of Law
Neil Richards, Washington University School of Law
Felix Wu, Yeshiva University Benjamin N. Cardozo School of Law

Panel 3: Religious Exemptions for Corporations

Caroline Corbin, University of Miami School of Law
Michelle Harner, University of Maryland Francis King Carey School of Law
Louise Melling, American Civil Liberties Union
Jennifer Taub, Vermont Law School
Nelson Tebbe, Brooklyn Law School

Keynote Speaker 2

Tamara PietyUniversity of Tulsa School of Law

Closing Remarks

Danielle CitronUniversity of Maryland Francis King Carey School of Law

For additional information, please contact Joella Roland, Executive Symposium & Manuscripts Editor, via email at JoellaRoland@UMaryland.edu.

ht: Neil Richards 

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FAN 53 (First Amendment News) Justice Sotomayor joins in discussion of Burt Neuborne’s New Book (“Madison’s Music”)

[My colleague Anthony Kennedy’s] approach to [the First Amendment], unlike some of my other colleagues,  is born on a very, very, almost fanatical belief that . . . the essence of democracy is no regulation of speech. Justice Sonia Sotomayor (March 13, 2015)

How could the pie get much sweeter? I mean, who among us is so fortunate as to have a sitting Supreme Court Justice travel to discuss a book we have just published?

Answer: Professor Burt Neuborne.

It is as rare as it is true — on March 13, 2015 Justice Sonia Sotomayor ventured to New York University Law School to join with Dean Trevor Morrison to discuss (for one hour or so) Neuborne’s Madison’s Music: On Reading the First Amendment (The New Press, 2015).  

Burt Neuborne, left, Sonia Sotomayor, & Trevor Morrison

Professor Burt Neuborne, left, Justice Sonia Sotomayor, & Dean Trevor Morrison

As it turned out, the pie did get sweeter when Justice Sotomayor first praised and then commented  on  Madison’s Music: “It’s a fun book for someone who’s not immersed in the law,” she said. “It’s so well written that I heard Burt’s voice in my head as I was reading it. I consider that the highest of compliments to an author.”

Later she asked: “You say that the focus of the First Amendment is democracy. You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

Neuborne: “I’m sort of shocked that you asked that, because it’s clear that I define it,” he said jokingly, to audience laughter. “But Sotomayor prevailed with the wry rejoinder, ‘No, no, no, you forget, I do,’ “prompting an eruption of mirth and applause.”

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” Neuborne added. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean — ‘Congress shall make no law abridging speech’ — and having it be sort of automatic, without even thinking about the consequences for democracy.”

When Neuborne took issue with the Roberts Court’s campaign finance line of cases, Justice Sotomayor asked: “How does a Madisonian judge strike on balance [when it comes to those] laws?” To which Neuborne replied: “Great question.” He then proceeded to discuss cases going back to Buckley v. Valeo (1976) and up to the Court’s latest rulings in this area. He took pointed exception to the Court’s “narrow, bribery, quid quo pro definition of corruption.”

Speaking in a very animated way, Neuborne was equally critical of the Court’s notion (one that “I genuinely . . . don’t understand”) that “contributions can create a risk of corruption because you give the money directly to a candidate, but the unlimited spending of money, without coordination with the candidate, doesn’t create a risk of corruption . . . .” He thought that citizens and judges alike need to ask themselves: “What kind of democracy are we trying to protect here?”

Returning more directly to his answer to Justice Sotomayor’s question, Neuborne remarked: “Everybody’s political power should be equal in a democracy, and money shouldn’t corrupt that idea. . . . I think if they adopted a Madisonian reading of the First Amendment  we would change campaign financing regulation overnight.”

Neuborne on Justice Anthony Kennedy

[Justice Kennedy is] the most important First Amendment Judge that has ever sat on the Supreme Court. . . . 

Federal Judges Get Free Book

At the outset of his remarks Professor Neuborne thanked his publisher, The New Press, “a non-profit press that remembers the responsibility of a truly free press in placing new and challenging ideas before the public, and who has helped in making the book available both to every federal judge and in donating the books outside [here today] for you.” 

There is much more, about democracy, free speech, substantive due process, the Second, Third, and Ninth Amendments, media corporations, partisan gerrymandering, and the rule of unelected judges. See video of the event here.

I will be doing a Q&A with Professor Neuborne concerning his new book, the First Amendment, and other things that matter to those in the First Amendment community (divided as it is).

On Corporations: Point – Counterpoint 

 Adam Liptak, “First Amendment, ‘Patron Saint’ of Protesters, Is Embraced by Corporations,” NYT, March 23, 2015

Damon Root, “The New York Times, a Corporation, Worries That the First Amendment Is Now ‘Embraced by Corporations,'” Reason.com, March 24, 2015

Amanda Shanor

Amanda Shanor

“Adam Smith’s First Amendment” — DC Circuit Comes Under Fire

That is the title of a new essay by Robert Post and Amanda Shanor, one that appears in the Harvard Law Review Forum. What troubles the authors is the “recent and aggressive expansion of commercial speech doctrine,” one that they argue has resulted in a “striking turn in our constitutional order.”

The essay was prompted by a decision by the Court of Appeals for the District of Columbia in a case named Edwards v. District of Columbia (2014). (Ms Shanor, a Yale PhD in law candidate and a Yale Law School graduate, is a former law clerk to Judges Judith Rogers (2012-2013) and to Cornelia T.L. Pillard (2013-2014) of the Court of Appeals for the D.C. Circuit.) Read More

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FAN 52.1 (First Amendment News) Court denies review in false political ads law case

This morning the Court released its latest order list. The Court denied cert in Arneson v. 281 Care Committee (see state’s cert. petition here). The Minnesota law challenged in the case provides:

A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material . . . with respect to the effect of a ballot question, that is designed or tends to . . . promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.

Applying a strict scrutiny standard of review, the Eight Circuit ruled that the law was not narrowly tailored to comply with First Amendment requirements, though the Eight Circuit panel also ruled that the state attorney general was immune from suit under the Eleventh Amendment.

 Tomorrow the Supreme Court will issue opinions in argued cases (see listing below) and may do so again on Wednesday.

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The next great First Amendment battleground, it turns out, is on the back of your car. — Adam Liptak (2009)

UnknownThis morning at 10:00 a.m. ET the Court is hearing oral arguments in the Texas license plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc. The case was argued by R. James George Jr. on behalf of the Respondent and by the state’s Solicitor General, Scott A. Keller. Some of the more notable amicus briefs were filed by:

See here re an earlier post re license plate cases breakdown of cases and sampling of scholarly literature.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (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
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Arneson v. 281 Care Committee
  2. ProtectMarriage.com-Yes on 8 v. Bowen
  3. Kagan v. City of New Orleans
  4. Clayton v. Niska
  5. Pregnancy Care Center of New York v. City of New York 
  6. City of Indianapolis, Indiana v. Annex Books, Inc.
  7. Ashley Furniture Industries, Inc. v. United States 
  8. Mehanna v. United States
  9. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  10. Vermont Right to Life Committee, et al v. Sorrell
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Guest Contributor — Floyd Abrams, “Liberty is Liberty”

Floyd Abrams speaking at Temple Law School

Floyd Abrams speaking at Temple Law School

Following my post entitled “Floyd Abrams on ‘the greatest threats to free speech in this country,'” a number of readers asked where they might find the entire text of Mr. Abrams’ March 16, 2015 remarks at Temple University, Beasley School of Law (the Arlin & Neysa Adams Lecture).  

I contacted Mr. Abrams and he kindly agreed to let me post his lecture, the text of which is set out below. I have added hyperlinks to the text. — RKLC

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A few weeks ago I read a blog post on Concurring Opinions. The post (entitled “First Amendment News”) is prepared weekly by Professor Ronald Collins and deals, in a particularly knowledgeable and even-handed manner, with the First Amendment in the courts, in legislatures, in academia, and elsewhere. In it, he summarized and attached a recent “workplan” of the American Civil Liberties Union. In eight pages, it listed nine priorities for the ACLU for 2015, ranging from reproductive rights (listed first) to mass incarcerations. Freedom of speech was not among the listed priorities and was referred to in only the most passing manner, an extraordinary omission for an organization formed for the prime purpose of defending that right and probably more associated with doing so than any other entity.

The ACLU later responded, pointing to a number of activities on its part aimed at protecting the First Amendment. Before it did so, however, another scholar — Professor Howard Wasserman — had responded to the blog with a provocative thesis. “One possible (if not entirely accurate) answer,” Professor Wasserman wrote of the ACLU’s omission, was this: “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.”

I have little doubt that Professor Wasserman didn’t mean to be taken too literally and I won’t seek to do so. But his observation did lead me to try to identify for myself what the greatest free speech civil liberties battles are today. Fortunately, we have no incidents such as in France of terrorists murdering journalists because they are offended by their offerings. Or, as in Russia, of journalists critical of the government being killed with disturbing and suspicious regularity. We have no examples of journalists being jailed, as in Turkey, because their writings outrage the regime in power. Or of direct governmental efforts to censor speech, as in India, by barring the televising of a documentary dealing with rape. Or of the Internet being censored, as in China, with the assistance of over two million people employed to monitor online conduct. Or of broadcasters being censored when they criticize the government, as in Venezuela. I could go on all too easily.

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So what is the greatest threat to free speech in this country? And where is it? There are obviously major issues relating to the potential impact of pervasive government surveillance on First Amendment freedoms. And those pesky issues relating to confidential sources of journalists — and as to who is a journalist — don’t seem to go away. And, of course, there are other issues.

Yet if I had to choose a topic and a locale, I think I would first look . . . right here. On this battleground. Oh, I don’t really mean here at Temple in particular. I don’t think I do, anyway.

The On-Campus Crisis 

But I do mean in colleges and universities, on campuses and in classrooms, by students and faculty and administrations. Around the country. This does not happen, as it might have many years ago when I was in college, simply because an all-powerful administration wanted complete control over all on-campus speech. (I well recall when, a few years ago, I entered Cornell that I was required to sign some document agreeing that I could be suspended for saying, doing or not doing just about anything of which the university disapproved, including not carrying the ID card they gave me saying just that.) Nor is it the result of pressure from powerful and wealthy alumni, a serious problem of the past.

If you’d like to see that sort of danger portrayed artistically, have a look at an old movie (even for me) called “The Male Animal” (1942), with Henry Fonda as a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted – very probably unjustly – of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views. And there have been a wide range of significant issues through the years.

Now, however, pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard. The amount of students who will not tolerate the expression of views with which they differ is less important than the sad reality that repetitive acts of speech suppression within and by our academic institutions persist and seem to grow in amount. And that is shameful.

What, after all, other than shame is deserved by Brandeis for offering and then withdrawing an honorary degree to Ayaan Hirsi Alia for her criticism of Islam; by the hostile atmosphere at Smith College that resulted in  Christine Lagarde’s withdrawal, the first woman to head the IMF, to speak to the graduating class; in Rutgers, for so embarrassing former Secretary of State Condoleezza Rice that she declined to appear. And for effectively withdrawing, George Will’s invitation to speak at Scripps College in California after controversy about the invitation.

And would you believe, as Chief Judge Loretta Preska of the United States District Court for the Southern District of New York pointed out in a recent address, that when the College Republicans at Fordham University invited Ann Coulter to speak on campus, “the uproar caused the group unceremoniously to rescind the invitation.”

One should really not have to say that of all places, campuses should be most protective of the broadest level of freedom of speech. Or that speakers should be permitted to have their say, instead of being booed off stage as former New York City Police Commissioner Ray Kelly was at Brown. Or shouted down, as Israeli officials have been, in threatening circumstances, and not permitted to speak on campuses. Or that it is disgraceful, as the findings of the Foundation for Individual Rights in Education (“FIRE”) reveal, that such topics as abortion, gay rights, and the “war on terror,” were “the cause of many disinvitation incidents,” that the amount of disinvitation incidents “has risen dramatically” over the past 15 years; and that Harvard – you’ve heard of Harvard, I’m sure – has the most disinvitation incidents. I don’t often quote William F. Buckley, Jr., but on hearing that, it’s hard not to recall his observation that “I’d rather be governed by the first 2000 people in the Boston telephone directory than the entire faculty at Harvard.”

What can one say about this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1858, “have every train of thought brought before us while we are young, and may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. It includes stifling speech itself. Wendy Kaminer, writing a few weeks ago in the Washington Post, described a recent panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive) figure by name — perhaps you can recall it — she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence.”

I don’t want to suggest that this is a problem limited to our country. Just as the First Amendment , which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer, in an article published in England just a month or so ago, reported on one English university in which (like here) the speech of a deputy ambassador of Israel had to be abandoned because of protests so noisy and threats of violence so credible that the safety of the speaker could not be guaranteed; of another that banned supposedly “racist” sombreros and native American dress; and of a third—one that you might have heard of called Oxford — where a debate on abortion was cancelled by College Censors (that’s their official name, by the way) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, appear to want to see and hear only views they already hold. Worse still, they want to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Oliver Wendell Holmes, to whom I referred earlier, long ago observed in one of his most famous opinions that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress,” we have seen time and again on campuses in our country speech stifled, speech condemned, and speech punished.

I was struck, in that respect, to read of the dispute on the U.C. Irvine campus earlier this month when the Associated Students of the University of California banned national flags from the lobby and offices of student government on the ground that “[t]he American flag has been flown in instances of colonialism and imperialism” and that they “not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments.” “Freedom of speech,” in certain spaces, the statement continued, can be interpreted as “hate speech.” The ban only lasted a few days before it was reversed, but what remains with me is not so much the degree of estrangement of the students involved from their country but that the students that supported it weren’t content with seeking to persuade others of their views but sought to impose their own by banning speech with they disagreed. It reminded me of the people who sought to criminalize the burning of the American flag. The First Amendment side of this issue is straightforward. Don’t ban the flag and don’t jail anyone who chooses to burn his or her own flag. That’s the way people who are devoted to freedom behave.

I do not mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Consider, as you may be already, the ugly racist chants of students at the University of Oklahoma. It is difficult to condemn, on any sort of moral basis, the decision of David Boren, the President of that University, to expel the students. In universities, as elsewhere, racism is not a blemish; it is a scar on everyone — those vilified, those uttering the ugly slogans of hate, and everyone else.  And if I were the president of a private university, that is not subject to the First Amendment, my initial instinct (but not ultimate decision) might well have been to expel the students. But because state universities are treated as instrumentalities of the state, the First Amendment applies to them, and the expulsion of the students was in all likelihood unconstitutional. That, as Professor Geoffrey Stone has summarized, is because “the central meaning of the First Amendment is that we do not trust the Government to decide for us what we should be allowed to hear, read, see or know.”

The Ideological Left’s Drift Away from the First Amendment  Read More