Tagged: First Amendment

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FAN 102.1 (First Amendment News) Laurence Tribe Petitions Court in Defamation Case

The case is Scholz v. DelpThe issue raised in it is whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action. The state court judgment below was in favor the First Amendment claim.

Harvard Law Professor Laurence Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe begins his brief my stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

Professor Laurence Tribe

Professor Laurence Tribe

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

The the three arguments advanced by Professor Tribe in his cert. petition are:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closes his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

 Response due April 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. Scholz v. Delp
  2. Justice v. Hosemann 
  3. Cressman v. Thompson
  4. 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.

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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FAN 99.6 (First Amendment News) Floyd Abrams on Campus Censorship (Then & Now) & Related Topics

On March 1, 2016, Floyd Abrams gave the Levitt Lecture at the University of Iowa School of Law. Below are a few excerpts from his remarks:

Floyd Abrams

Floyd Abrams

Years Ago: In London with Justice Scalia & Nadine Strossen (then President of the ACLU): “We started talking about some First Amendment cases, particularly Hill v. Colorado, a ruling affirming the constitutionality of significant limitations on speech in areas near facilities in which abortions were performed. All three of us agreed on how terrible the majority opinion of Justice Stevens was and how enlightened Justice Scalia’s dissent was. (In those days, although not more recently, the ACLU, which Nadine then headed, took a strong First Amendment stand against such laws.) Justice Scalia, one could tell, enjoyed the conversation, and at one point leaned back, drink in hand, cigar in mouth, and said ‘you know, I’m not really bad about the First Amendment.’”

Campus Censorship in the 1950s: Reading [about] examples [of censorship on college campuses today], I couldn’t help but compare them to the time when I entered Cornell University more — as you will undoubted be surprised to hear — than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus — a real loss, I can say in retrospect — but very much the ethos of life in America on and off campus in the long ago 1950s.”

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Free Speech on College Campuses Today: “Just about a year ago, I gave a speech in Philadelphia at Temple University in which I maintained that the single greatest threat to freedom of speech in the country was on college campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, even disturbing. Nothing that has occurred in the last year has led me to change that view. Part of the problem stems from the behavior—misbehavior might be the better word–of college and university administrations. The indispensable organization called FIRE, which tracks the behavior of colleges and universities with respect to free speech on campus, has just published its list of the 10 worst colleges for free speech in 2016. I held my breath as I read it, wondering if your great university would make the list in time for me to comment on it in this talk.”

The New Censors: “[T]oday there are new censors who seek to place new limits on what may be said on campus. And I’m sorry to say they’re students. . . . Most campus activism in public universities is protected by First Amendment and is indispensable if society is to change for the better. But too often in recent days, students have overstepped the bounds of activism into demanding a sort of de facto censorship. And too often, those desires of those students are accommodated by all-too-compliant university administrators that are willing to bend to their demands rather than risk the turmoil or worse that could result in their not doing so.”

Mr. Trump & the First Amendment: “[I]t’s worth remembering that some of [Mr. Trump’s] rhetoric would not only be controversial in other democratic nations, as it certainly is here, but illegal. In Belgium, a member of Parliament was convicted of a crime for saying, ‘Stop the Islamification of Belgium’ and making similar statements. In England, a man was convicted for carrying a poster that said, ‘Islam out of Britain-Protect the British People.’ Whatever you think of more than one not dissimilar statement of Mr. Trump in this campaign – and, in case you’re interested, I think they are appalling – the First Amendment protects them.” (See also Abrams & Collins: “Confronting Trump — An American Debate Censorship Cannot Stop,” Concurring Opinions, Dec. 18, 2015).

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The Evils of Caretaker Tyranny – Reflections on Catherine Ross’ “Lessons in Censorship”

It is the mass psychology of our times: victimization. It is ubiquitous. It is an affliction of desire, one suffered by anyone who dons a victim’s badge – liberals and conservatives, men and women alike. It is fiction masquerading as fact. It feigns suffering in the hope of attaining sympathy. It is the triumph of desired perception over verifiable reason. It is group-thought, which means it bears little relation to actual thinking. And it trades in a portrayal of the individual not as self-determined but rather as group-manipulated.

“Victims” can be abled or disabled, religious or non-religious, poor or well to do, young or old, or those on the ideological Left or Right. They are all “survivors”; they all seek our sympathy. True to the supposed affliction, the resulting sympathy is either disingenuous or delusional, if only because what prompted it was either disingenuous or delusional.

This trend towards victimization diminishes our capacity to feel real sympathy for real victims. Yes, rape is real; true, violence is deplorable; and, of course, actual threats are never to be tolerated. Any civilized society  worthy of the name must roundly condemn such acts. But when the demands for our sympathy or outrage become unthinking, when what prompts them is political ideology, something is lost. That something is authenticity, which alone can summon the true habits of the heart. Being sensitive, however, does not mean being sensational. We do not need to close our minds in order to open our hearts.

caretaker-85772758The mantra of victimization invites caretaker tyranny. In such a culture, these caretakers demand protection against the forces of evil, not real evil but one fabricated to suit the mindset of helplessness. In a world populated by the helpless, the forces of good must take action. For example, at Brown University a “safe space” was created to comfort any college student victimized by the trauma of a campus debate on sexual assault. But safe houses are not enough; there must be sanctions. Rules must be set in place to assure an atmosphere of compulsory calm. Tongues must be silenced; books must be cleansed; and events must be scrubbed to prevent anything that might trigger any kind of offense. George Will recently tagged it “sensitivity censorship.” True, but it is censorship in the service of a false sensitivity, one divorced from reality.

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41Sa-0L-7ML._SX329_BO1,204,203,200_And that is where the First Amendment comes into play, which brings me to Catherine RossLessons in Censorship: How Schools & Courts Subvert Students First Amendment Rights (Harvard University Press, 2015). It is a sobering book . . . for those who wish to be sober. It is a mind-opening book . . . for those willing to be open-minded. It is a revealing book about judicially sanctioned censorship . . . for those willing to listen. It is a plan for instructive action . . . for those willing to act. And it is a call to liberty . . . for those wishing to be free.

When reading this well-argued and well-researched book, what struck me most was this: When it comes to student speech, the conservatism of the Burger, Rehnquist and Roberts Courts helped to inform the censorship championed by the cheerleaders of victimization. Ever since the Warren Court’s 1969 Tinker ruling, the cause of student free speech has been a losing one. Merely witness the adverse rulings in Bethel School District v. Fraser (Burger Court: 1986), Hazelwood School District v. Kuhlmeier (Rehnquist Court: 1988), and Morse v. Frederick (Roberts Court: 2007), and all of the countless lower cases (documented in Ross’ book) that have followed suit.

Point of Clarification: The cases just mentioned all involved high school students, whereas my earlier reference to the Brown University mentality involved college students. And while courts have regularly sanctioned censorship at the secondary level, censorship at the college level has been routinely disapproved by lower courts thanks to litigation brought by FIRE, the ACLU, the Student Press Law Center, and the Center for Campus Free Speech.

That said, the thread that weaves its way through the fabric of both lines of cases is this: The Supreme Court’s post-Tinker rulings – save for Rosenberger v. University of Virginia (a 1995 religious funding college campus case) – suggest two things. First, the authority of school officials to regulate student speech is vast. Second, any asserted justification for censorship will be deemed credible. Thus understood, the governing norm for school administrators is one spawned by what might be called protective paternalism (or maternalism, if you prefer). Such paters protect everyone; they are the caretakers of our time. Such paternalism, rooted in the secondary school cases, has carried over into the college realm and informs much of the administrative thinking there. The mindset of these school principles has become that of college administrators. In the process, that same kind of thinking shapes the minds of the impressionable young.

What is lost in the mix is education in what it means to live in a society governed by the principle of free speech. Schools, as Professor Ross reminds us, are “training grounds for citizenship,” places where the value of free speech may be taught as a “counterweight to the voices demanding censorship of ideas that might upset some people.” Such education is neither education in victimization nor education in subservience. Rather it is education in toleration and liberty. To be sure, real abuses of freedom betray real freedom. Civility is important. Still, as Ross counsels us time and again, liberty must not be held in perpetual pause by school officials either enamored with their power or charmed by the idea of being caretakers of pseudo victims.

Turn the pages of Lessons in Censorship and you will discover what it means for students to think freely and how courts have fashioned baseless arguments designed to squelch such thinking. Open this book and you will be introduced to the kind of nuance (buttressed by considerable research and documentation) that grasps “the importance of keeping discipline for student expression within constitutional limits.” Consider the points made in this book concerning insults, hate speech, and bullying, and you will walk away with a more informed idea of what kinds of speech do real harm (and thus may be regulated) versus the kinds of speech that do not (and should thus be tolerated). Take heed of what is set forth in this book about school officials extending their disciplinary powers off campus so as to become would-be parents, and you will fear for freedom. There is, to be sure, more, but that is for you, the reader, to discover.

Lessons in Censorship is a book that should be read and discussed by school officials at all levels of education. It is a work that should be poured over by school board officials and lawyers who represent school districts and college campuses. And its message should carry over into the memoranda and briefs that lawyers file to inform judges. It is too important a book to be left to academics unless they use it as a teaching tool in educating students about the importance of free-speech liberty.

To return to my beginning: The cult of victimization, so prevalent on our college campuses, is grounded in a system of secondary education alienated from the principles of free speech. It takes leave from the the very principles that teach self-reliance, toleration, and the importance to meet, expose, and contest every brand of bigotry designed to diminish our humanity.

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FAN 83 (First Amendment News) Paul Smith Files Cert. Petition in Right of Publicity Case

It would be dangerous for persons trained only in the law to constitute themselves the final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. — Justice HolmesBleistein v. Donaldson Lithographing Co. (1903)

If there is a legal principle that unites these rulings [concerning the right of publicity], it is hard to discern. — Adam Liptak (2013)

 Paul M. Smith: Most people know him as the man who successfully argued Lawrence v. Texas (2003), which overruled Bowers v. HardwickIn the First Amendment world he is known as the lawyer who successfully argued Brown v. Entertainment Merchants Association (2011). There is, of course, more to the vita of Mr. Smith, the man at Jenner & Block who chairs the Appellate and Supreme Court Practice there, and co-chairs the Media and First Amendment, and Election Law and Redistricting Practices. So you get the idea — he’s a seasoned and highly skilled appellate lawyer.

Paul M. Smith

Paul M. Smith

In case you missed it, Mr. Smith’s latest case is Electronic Arts, Inc. v. Davis, in which he filed a cert petition in the Supreme Court last September. The issue in the case is “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.” The controversy stemmed from the depiction of  former NF players in the “Madden NFL” video game franchise.

9th Circuit Ruling: In an opinion by Judge Raymond Fisher writing for a three-judge panel, the Ninth Circuit denied the First Amendment claim. “EA has not shown,” wrote Judge Fisher, “that its unauthorized use of former players’ likenesses in the Madden NFL video game series qualifies for First Amendment protection under the transformative use defense, the public interest defense, the Rogers test or the incidental use defense. Accordingly, we affirm the district court’s denial of EA’s motion to strike.”

The Cert Petition 

“This case involves the collision of the First Amendment and the state-law ‘right-of-publicity’ tort, an issue that has engendered conflict and disarray among the lower courts to the detriment of free expression. The right of publicity is a modern tort, first recognized in 1953” in the case of Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Thus does Mr. Smith begin his brief and his discussion of the “modern tort” that gave rise to the First Amendment defenses raised in EAI. 

 Conflict in the Circuits

The Supreme Court has not addressed the question, and decisions from the lower courts are a conflicting mix of balancing tests and frameworks borrowed from other areas of free-speech doctrine. — Judge Diane Sykes (2014)

As argued in the Petitioner’s cert. petition, the Supreme Court’s “only contribution came nearly forty years ago in Zacchini v. Scripps-Howard Broadcasting Co., (1977), in which the Court held [by a 5-4 vote] that the First Amendment did not bar a right-of-publicity claim against a television station that broadcast an entertainer’s entire human-cannonball act. . . . Thus, Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full.” On that score, and as discussed by Mr. Smith, there is a conflict among the lower courts as how to analyze such cases.

“The lower courts’ various and conflicting constitutional tests,” Smith maintains, “have resulted in numerous irreconcilable outcomes.” For example, in his brief he identifies the following conflicts:

  1. Transformative-Use Test: Used by the Third and Ninth Circuits.
  2. Rejection of Transformation-Use Test: The Second, Fifth, Sixth, and Eleventh Circuits, along with the Florida and Kentucky Supreme Courts, have “held that the First Amendment protects non-commercial speech depicting well-known people even if the depiction is not transformed.” (See below re Rogers test).
  3. Case-Specific Balancing Test: Used by the Eight and Tenth Circuits.
  4. Predominate Purpose Test: Used by the Missouri Supreme Court.

Suggested Approach

The test used in Rogers v. Grimaldi (2nd Cir., 1989), Smith argues, “allows the right-of-publicity tort only when the speaker has used a depiction of, or reference to, a celebrity to sell something — either by falsely claiming a celebrity commercial endorsement or by including a celebrity image in a publication gratuitously, just to attract attention. Confined to these circumstances, the right of publicity does not raise constitutional concerns. Speech that falsely claims a commercial endorsement is akin to the category of fraudulent speech that the government has long regulated without any First Amendment concerns. And the gratuitous use of a celebrity’s image to attract attention, unrelated to any expressive content in the work, likewise falls outside First Amendment protection altogether. Thus confined, the right-of- publicity tort raises little constitutional concern.”

The brief closes with this admonition: “Unless and until this Court intervenes, a great deal of valuable and protected expression will be chilled.”

Related Articles, Events & Blogs

 → Rebecca Tushnet, “A Mask that Eats into the Face: Images and the Right of Publicity,” Columbia Journal of Law & the Arts (2015)

 Eugene Volokh,” Freedom of Speech and theRight of Publicity,” 40 Houston Law Review 903 (2003)

 Rothman’s Roadmap to the Right of Publicity: a 50-state interactive survey of right of publicity laws, plus breaking news.

→ On October 17, 2015, the Abrams Institute hosted a workshop entitled “Right of Publicity: Closed Workshop.” Participatants included Floyd Abrams, Paul M. Smith, Rebecca Tushnet, Jennifer Rothman, Mark Lemley, Jack M. Balkin, Bruce Keller, Stacey Dogan, and Lee Levine.  The following issues were addressed:

  1. Current state of right of publicity law;
  2. Introduction to the current relationship of right of publicity to copyright, trademark and privacy principles;
  3. First Amendment theories relevant to thinking about right of publicity;
  4. The nature of the “right”;
  5. How is the “right” to be reconciled with the First Amendment?;
  6. Relationship to Copyright law; Relationship to Trademark law; and
  7. Practical issues

11th Circuit finds Georgia State psychologists have no First Amendment right to complain Read More

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FAN 81.1 (First Amendment News) Floyd Abrams, “Beyond the Reach of Government”

Floyd Abrams

Floyd Abrams

The following remarks were delivered at Yale Law School on Saturday, October 24, 2015 on the occasion of Floyd Abrams receiving the Yale Law School Association Award of Merit. Previous recipients include Supreme Court Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Secretary Hillary Rodham Clinton. The remarks below are posted with Mr. Abrams’ permission.  

* * * * 

My ticket of admission to this party today appears to be the First Amendment so I thought I’d distill all my learning on the subject into a five minute presentation. Draw what conclusions you choose from my presumption in doing so – the notion of a five-minute tour of the First Amendment may be a first in and of itself – but here we go.

First, we’re lucky, really lucky, to have it. Not just because it’s a good thing that we have a First Amendment, although of course it is, but because we came so perilously close to not having it at all. It’s worth recalling that the states that met in Philadelphia in 1789 to draft a Constitution unanimously voted not to have a bill of rights at all. Why, Alexander Hamilton wrote in Federalist 84, “declare that things should not be done which there is no power to do”? “Why,” he asked, “should it be said that liberty of the press should not be restrained when no power is given by which such restrictions may be imposed?” Only the unyielding position by Jefferson and others that, in Jefferson’s words, “a bill of rights is what the people are entitled to against every government on earth” led to the adoption of any bill of rights, let alone one with a First Amendment.

imagesSecond, for all of its 18th century lineage, the First Amendment may be best understood – I know Justice Scalia would not approve – as a 20th century, even second half of the 20th century, document. It wasn’t seriously cited in any number of Supreme Court opinions as a bulwark against government overreach until the enduring Holmes and Brandeis opinions (often in dissent) in the 1920’s; it wasn’t applied to the states until the 1920’s; and the first federal law held to be unconstitutional based on the First Amendment did not occur until 1965.

Third, the First Amendment is negative in nature. It says “Congress shall make no law” on purpose. It doesn’t promise freedom of the press; it promises that the government will not abridge it. That leaves lots of room for interpretation. But it does not permit the conclusion – sorry about this, Justice Breyer – that “first and foremost, the First Amendment seeks to facilitate self-government” by “encouraging the exchange of information and ideas which are necessary for citizens themselves to shape “public opinion” No.

The First Amendment certainly facilitates self-government. It certainly helps in the shaping of public opinion. But first and foremost, it does so by putting free speech and free press, as Madison put it, “beyond the reach of this Government.”

Over half a century ago, the essayist Norman Cousins put it this way: It is not “that democracy lacks affirmative values. The affirmative values are many and varied, but they all rest on a solid bedrock of restraints upon government.”

Fourth, any bill of rights and any First Amendment is only meaningful if the government it purports to limit is prepared to obey it – to treat it as binding law. Consider this alternative to the First Amendment: “Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and of association.” Not bad, right? But that’s to be found in Article 67 of the Constitution of North Korea, one of the world’s truly despotic, murderous and freedom-destroying nations. Its asserted protection of free speech is a lie, nothing less, since, it is rooted neither in any concept of law, let alone individual liberty.

To return to my beginning: We are a lucky people in so many ways. I am lucky and so are you to have attended this great institution. And we’re all lucky to live in a nation in which freedom of speech is so rightly revered.

© Floyd Abrams, 2015

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FAN 74 (First Amendment News) Summer thoughts on dissent

Before the summer runs its course, I thought I’d do a post on one of my favorite topics — dissent. So no news this week, just some thoughts on dissent — and some lists of books, and songs, and what have you.

Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. One of the First Amendment’s greatest virtues is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists, Tea Party supporters, religious zealots, the politically incorrect, and even nihilists.

* * * *

William F. Buckley, Jr.

William F. Buckley, Jr.

Dissent. It is a word we all know. We use the word with regularity in any variety of contexts. Judges dissent against a court majority. Political activists dissent against the establishment. Religious protesters dissent against orthodoxy. Students dissent against an administration. Newspaper editorialists dissent against politicians. And employees dissent against management. The list goes on.

In these ways and others, America values dissent, or so it seems. We often tolerate, encourage, and protect dissent. It is part of our Madisonian heritage. Some preach it, some practice it, others safeguard it, and still others endure it even when they oppose its message. Dissent is a salient feature of our modern society. It is a cultural and constitutional given.

Over the ages, dissent has been championed for assorted reasons. Dissent, it might be said, promotes self-realization and autonomy. It enables individual self-expression without fear of societal repression. The liberty of self is meaningless if one must always conform to majority will. Freedom for the outsider allows a unique brand of self-identity and self-expression.

Dissent, it might be said, advances religious freedom. When people of faith are permitted to question prevailing beliefs, they stand to redefine the relationship between themselves and their Maker. This spirit of moderation extinguishes the fires of heresy.

Dissent, it might also be said, contributes to the marketplace of ideas. It does this by promoting competition among divergent viewpoints. The hope is that, in the battle of opinions, some form of truth will prevail over falsehood, and the struggle will produce a more enlightened citizenry.

(credit: Adam Zyglis / The Buffalo News)

(credit: Adam Zyglis / The Buffalo News)

Dissent, it might further be said, enables self-governance by civic participation. Such participation is a two-way street: it is the prerogative to agree or disagree with governmental action. When the governed rule, they must have the right to differ from their governors.

Dissent likewise checks governmental abuses of power. When the whistleblower exposes governmental corruption or malfeasance, political power then comes under public scrutiny. By raising citizen awareness, dissent might bring about institutional reforms.

Dissent might moreover cultivate a democratic culture of tolerance, where all views are suffered no matter how objectionable they may be. Democracy is diversity, and diversity of views is often born out of dissent. One measure of a thriving democracy is the extent to which it fosters vibrant dissent.

Finally, it might also be said that a culture of dissent secures a safe haven for the outsider. When individuals no longer fear censure simply for being different, they can give public voice to their private views. Thereby, dissenters are afforded a chance to expand the behavioral boundaries of their society.

Whatever the objections to dissent, it is valued for all these reasons and others.  (source: Collins & Skover, On Dissent: Its Meaning in America)

Unknown rebel in front of tank in Tiananmen Square (credit: The Mirror, UK)

Unknown rebel in front of tank in Tiananmen Square (credit: The Mirror, UK)

Books of and on Dissent 

  1. Pierre Berton, editor, Voices from the Sixties: Twenty-Two Views of a Revolutionary Decade (1966)
  2. William F. Buckley, Jr., God and Man at Yale: The Superstitions of “Academic Freedom” (1951)
  3. Stokely Carmichael & Charles Hamilton, Black Power: The Politics of Liberation in America (1976)
  4. Stephen Carter, The Dissent of the Governed (1998)
  5. Nancy Chang, Silencing Political Dissent (2002)
  6. Collins & Skover, On Dissent: Its Meaning in America (2013)
  7. Dinesh D’Souza, Letters to a Young Conservative (2005)
  8. William O. Douglas, Points of Rebellion (1969)
  9. Christopher Fairman, Fuck: Word Taboo and Protecting our First Amendment Liberties (2009)
  10. Betty Friedan, The Feminine Mystique (1963)
  11.  Amin Ghaziani, The Dividends of Dissent: How Conflict and Culture Work in Lesbian and Gay Marches on Washington (2008)
  12. Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (2009)
  13. Andrew Hsiao & Audrea Lim, editors, The Verso Book of Dissent: From Spartacus to the Shoe-Thrower of Baghdad (2010)
  14.  Eugene Dennis

                   Eugene Dennis

    Martin Luther King, Letter From a Birmingham Jail (1963) (full text here)

  15. Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (2007)
  16. Robert W.T. Martin, Government by Dissent: Protest, Resistance, and Radical Democratic Thought in the Early American Republic (2013)
  17. Kate Millett, Sexual Politics (1970)
  18. Jack Newfield, editor, American Rebels (2003)
  19. The Port Huron Statement: The Visionary Call of the 1960s Revolution (1962, 2005)
  20. Michael Ratner & Margaret Ratner Kunstler, Hell No: Your Right to Dissent in 21st-century America (2011)
  21. Charles Reich, The Greening of America (1964)
  22. Austin Sarat, editor, Dissent in Dangerous Times (2005)
  23. Steven Shiffrin, Dissent, Injustice, and the Meanings of America (2010)
  24. Herbert Storing, editor, The Complete Anti-Federalist (1981)
  25. Cass Sunstein, Why Societies Need Dissent (2003)
  26. Henry David Thoreau, Jeffrey S. Cramer, editor, Essays (2013)
  27. Gordon S. Wood, The Radicalism of the American Revolution (1991)
  28. Ralph Young, Dissent: The History of an American Idea (2015)
  29. Howard Zinn, Declarations of Independence: Cross-Examining American Ideology (1990)

51CmbungqBL._SX327_BO1,204,203,200_Forthcoming Books on Dissent

  1. Melvin Urofsky, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (Pantheon, October 13, 2015)
  2. Stephen D. Solomon, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press (April 26, 2016)
  3. Thomas Grace, Kent State: Death and Dissent in the Long Sixties (University of Massachusetts Press, January 14, 2016)
  4. Maria Rovisco & Jonathan Corpus Ong, editors, Taking the Square: Mediated Dissent and Occupations of Public Space (Rowman & Littfield, April 2016)
  5. Wendy B. Scott & Linda S. Greene, I Dissent!: The Dissenting Opinions of Justice Thurgood Marshall (Carolina Academic Press, March 11, 2016)
  6. Thomas Grace, Kent State: Death and Dissent in the Long Sixties (University of Massachusetts Press, January 14, 2016)

* * * *

 [I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate. — Holmes, dissenting in United States v. Schwimmer (1929)

Editorial_cartoon_depicting_Charles_Darwin_as_an_ape_(1871)Books of and on Religious Dissent

  1. Margaret H. Bacon, The Quiet Rebels: The Story of the Quakers in America (1969)
  2. John M. Barry, Roger Williams and the Creation of the American Soul (2012)
  3. Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (2012)
  4. William Lee Miller, The First Liberty, Expanded and Updated: The First Liberty: America’s Foundation in Religious Freedom (2003)
  5. Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2010)
  6. Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000)
  7. John Ragosta, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution & Secured Religious Liberty (2010)
  8. Stephen Stein, Communities of Dissent: A History of Alternative Religions in America (2003)
  9. Roger Williams, The Bloudy Tenent of Persecution for Cause of Conscience (1644)
  10. John Winthrop, A Short History of the Rise, Reign, and Ruin of the Antinomians, Familists, and Libertines (1644)
Bob Dylan & Joan Baez (credit: SVA Picture Collection)

Bob Dylan & Joan Baez (credit: SVA Picture Collection)

Songs of Dissent (YouTube clips)

  1. Tracy Chapman, Talkin’ bout a Revolution
  2. Sam Cooke, A Change is Gonna Come
  3. Crosby, Stills, Nash and Young, Ohio
  4. Bob Dylan, Masters of War
  5. Dylan, The Lonesome Death of Hattie Carroll
  6. Dylan, The Times They Are A-Changin
  7. Peter Gabriel, Biko
  8. Marvin Gay, What’s Goin On?
  9. Woody Guthrie, This Land is Your Land
  10. Billie Holiday, Strange Fruit
  11. Macklemore & Ryan Lewis (feat. Mary Lambert), Same Love 
  12. Barry McGuire, Eve of Destruction (Reply: Barry Sadler, Ballad of the Green Berets)
  13. N.W.A., Fuk Da The Police
  14. Phil Ochs, I Ain’t Marching Anymore
  15. The Plastic Ono Band, Give Peace a Chance
  16. Public Enemy, Fight the Power
  17. Nina Simome

             Nina Simone

    Rage Against the Machine, Killing in the Name

  18. Pete Seeger sings Woody Guthrie Deportee
  19. Seeger, We Shall Overcome
  20. Nina Simone, Mississippi Goddam
  21. Todd Snider, Ballad of the Kingsmen 
  22. Buffalo Springfield, For What It’s Worth
  23. Buffy St Marie, Universal Soldier
  24. U2, Sunday Bloody Sunday
  25. Suzanne Vega, Luka
  26. The Wailers, Get Up, Stand Up

Last Scheduled FAN #73: “D.C. Circuit strikes down SEC “conflict minerals” rule by 2-1 margin

Next Scheduled FAN #75: September 2, 2015

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FAN 69 (First Amendment News) Justice Alito discusses four First Amendment cases in Kristol interview — Free-Speech Jurisprudence Comes into Sharper Focus

“[I]f we lose focus on what is at the core of the free-speech protection by concentrating on . . . peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction.” — Justice Samuel Alito

Recently, Justice Samuel Alito participated in a video-recoreded interview with Bill Kristol. In the “Conversations with Bill Kristol” program the Justice discussed his legal education and the workings of the Supreme Court. He also discussed four First Amendment free-expression cases: United States v. Stevens (2010), Snyder v. Phelps (2011), United States v. Alvarez (2012), and Citizens United v. Federal Election Commission (2010).

Below are some excerpts I transcribed from the video-recorded interview in which Justice Alito discussed the First Amendment, this in response to questions posed to him by Mr. Kristol. I have added captions to the transcript and have edited it in places as well. (There is also a transcript of the entire interview  (login required) on the “Conversations with Bill Kristol website.)    

Following the exchange between the Justice and Mr. Kristol, I added some preliminary commentaries on what Justice Alito’s remarks may suggest about his larger First Amendment jurisprudence.  

Finally, I ended with some general information about Justice Alito and his free-speech jurisprudence.  

The Stevens Case

Justice Alito on "Conversations with Bill Kristol"

Justice Alito on “Conversations with Bill Kristol”

The Justice’s discussion of Stevens — the videoing of animal cruelty case — was largely descriptive. What concerned Justice Alito about the case the fact that it was “virtually impossible to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?”

Because of overbreadth problems, seven Justices voted to strike down the law on First Amendment grounds while Justice Alito felt otherwise and dissented.

The Phelps Case

Here, too, much of the discussion of Phelps — the military funerals protest case — was descriptive. What concerned the Justice was the fact that in “this particular case the . . .  [protesters] had placards that said horrible things about [the soldier being buried] . . . It was very distressing to the family members, who were in attendance.”

“So they were sued under a very well-established tort that goes back to the nineteenth century — the intentional infliction of severe emotional distress. And I thought that this tort constituted a reasonable exception to the First Amendment, but my colleagues disagreed about that.”

Bill Kristol

William Kristol

Mr. Kristol: “. . . What about the obvious sort of simple argument that . . . it is a slippery slope, that you cannot curtail speech? That is kind of the argument that the majority made, in one way or  the other, I would say.”

Justice Alito: “Well I think that some members of the majority — this is not based on inside information, this is what I get from reading the opinion — I think that there are those who would support the majority decision in both those cases for exactly that reason. So if we say, even in these outrageous situations, ‘we will not tolerate any abridgment of freedom of speech,’ then when something comes along that I would regard, and I think our cases would regard as really being at the core of the free-speech protection, these decisions provide a guarantee, or they provide a wall of proaction against a bad decision in those areas. If I really believed that to be the case, I might think it was an appropriate tradeoff. I don’t think that’s the case. I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”

The Alvarez Case

Justice Alito: “So what I think has been going on in those two cases and another one where I was in dissent, this time not by myself, in United States v. Alvarez, which had to do with the constitutionality of a statute passed by Congress called ‘The Stolen Valor Act,’ [which] prohibited a false claim of having received a military medal. . . .”

Mr. Kristol: “Which was happening a lot at the time.”

Justice Alito: “It was happening a lot. People were making up, you know, claiming to have won the Congressional Medal of Honor . . . “

Reflecting on StevensPhelps and Alvarez, Justice Alito stressed that “those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech.”

He then developed that point as noted below.

Protecting Core Political Speech

Justice Alito: “I think freedom of speech protects and serves many purposes, but I believe, and I think the Court has said that at the core, whatever other purposes it may serve, it is vitally important for democratic self-government. If people cannot debate public issues, if they cannot debate the relative merits of political candidates, then democracy is basically impossible. So I think that is the core of the protection. These cases involving . . . depictions of animal cruelty, the protest at military funerals, [and] falsely claiming to have won the Congressional Medal of Honor don’t involve anything like that.”

“And if we lose focus on what is at the core of the free-speech protection by concentrating on these peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction. In the cases that we’ve had that I think involve core free speech. . . the chief example that I would give from my time on the Court is the Citizens United case. . . . [N[ow that [case] came out five to four . . . . Citizens United, I think, is core political speech. It is a video about a candidate for the Presidency of the United States. If that’s not protected by First Amendment free speech, by the First Amendment free speech guarantee, I don’t know what is.”

“So on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.”

Mr. Kristol: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.”

Justice Alito: “I don’t think it works.”

Mr. Kristol: “You also make the argument, as I recall, in at least one or two of those three dissents, you make more of a positive argument for the virtues, for the right, for . . . the ability of the community to draw certain boundaries around civility or civilized behavior almost, mostly in the case of the soldiers’ funerals or all of them really, the animal cruelty [and the] lying [case]. Those are all things a community would have a reasonable interest in discouraging, to say the least.”

Justice Alito: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. I would not make the same argument in a case . . . involving political speech. I thought all of them were cabined by specific rules, very reasonable rules. So in the animal cruelty case, I thought that was very similar to the rationale . . . against child pornography. Which is that you can’t produce child pornography without abusing a child and by stamping out child pornography, or trying to stamp out child pornography, you are attacking the underlying abuse – same thing [holds true] with these crush videos. You couldn’t stamp them out without preventing the creation and the circulation of the videos. . . . I think that kind of an argument is a dangerous argument when you’re talking about political speech. . . .”

The discussion ended with some brief additional comments about hate speech in Europe.

[ht: Tony Mauro]

Commentary Read More

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

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

Cody Wilson -- have gun, will publish

Cody Wilson — have gun, will publish

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

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

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

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

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

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

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

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

The attorneys in the case are:

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

Summary of Complaint

Alan Gura

Alan Gura

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

First Amendment claims 

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