Tagged: First Amendment


FAN 12.3 (First Amendment News) Floyd Abrams Institute Sponsors Upcoming Conference

The Floyd Abrams Institute for Freedom of Expression is sponsoring an upcoming First Amendment conference at Yale Law School. This will be the the second Freedom of Expression Scholars Conference, which is hosted by the Information Society Project (ISP) at the Law School. The event is scheduled for May 3-4, 2014.abrams-logo

“The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy. The conference offers participants an opportunity to receive substantive feedback through group discussion. Each accepted paper will be assigned a discussant, who will lead discussion and provide feedback to the author. Participants will be expected to read papers in advance, and to attend the entire conference.”

The array of topics for the conference includes:

  • Constitution Betrayed: Free Expression, the Cold War, and the End of Democracy
  • First Amendment Challenges to Economic Regulation in the Jehovah’s Witness Cases       
  • Free Speech Constitutionalism (see also here)
  • National Security Letters and the First Amendment, Brief of Amici Curiae Floyd Abrams Institute and First Amendment Scholars, In re Nat’l Sec. Letter (9th Cir. filed Mar. 31, 2014) (Brief currently under seal)
  • Old School/New School Speech Regulation (see also here)
  • Product Redesign as Commercial Expression: Antitrust Treatment of Speech and Innovation
  • Revenge Porn (see also here)
  • The Freedom not to Think
  • Unreasonable Access: Disguised Issue Advocacy and the Role of Broadcasters in Shaping Public Discourse
  • When Government Lies: The Constitutional Implications of the Government’s Deliberate Falsehoods
  • Why Data Privacy Law is (Mostly) Constitutional (see also here)

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    ISP Logo

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FAN 12.2 (First Amendment News) – Justice Altio on the First Amendment

Over at The American Spectator, Matthew Walther (an assistant editor there) has a very informative article titled Sam Alito: A Civil Man – The pleasure of Justice Alito’s Company. It is an overview of the Justice’s career on the Court and before. The article is well flavored with revealing snippets from an interview Mr. Walther did with the Justice. Anyone interested in the Court will want to read this article with its rich mix of the personal and professional side of the Justice.Samuel-Alito-articleInline

I have taken the liberty of excerpting a few passages from the Walther article, passages that concern, naturally, the First Amendment.


Citizens United & State of the Union 

“When he tells me that he is done making appearances at the State of the Union, I ask him about the last time he attended, in 2010, when he mouthed what looked like the words ‘Not true’ in response to President Obama’s characterization of the Court’s ruling in Citizens United v. Federal Elections Commission. ‘I don’t play poker,’ he says.”

“Either I should take it up so that I learn to have a poker face, or it’s a good thing that I don’t because I’d lose a lot of money. People thought I said something. I assume that they’re correct. I certainly thought it. The president said that Citizens United overruled a century of precedent, which just isn’t true. The chief justice has said that he thought that the president’s criticizing us while we were sitting there was inappropriate. I don’t know that something like that has been done before.”

United States v. Stevens & Snyder v. Phelps

“In Stevens I thought that the real restriction was on conduct, on animal cruelty, rather than on expression,” he says. “There is virtually no way to prosecute the people who are involved in these acts. If you say that you can’t circulate these videos it dries up the market for them.”

Snyder was a tough call,” he says. “Obviously eight of my colleagues disagreed with me.” I ask him what Stevens and Snyder tell us about the limits of the free speech. “The core of the First Amendment is political speech. Any restriction of political speech I think is very dangerous. That is what was involved in Citizens United. This was speech about a candidate for president. What could be more important than that? It’s about the free exchange of ideas concerning public policy, economics, science, art, religion, philosophy, all of those things.”

“Now I can’t speak for my colleagues, but I think I understand the impulse to say that we cannot tolerate any restrictions on freedom of speech because if we allow it even when it’s something like a video of a woman stomping a little animal, then that kind of limitation will begin to restrict the things that need to be covered. But if a court is going to allow restrictions on political speech or intellectual debate or discussion of the arts, our having ruled on these outliers is not going to stop it.”


There is more, much more, to Matthew Walther’s profile of and interview with Justice Alito, which I recommend to you.

For those interested, earlier accounts of Justice Alito’s views on the First Amendment are offered here, herehere, and here.

Last FAN Column: “First Amendment salon to be launched

Last Scheduled FAN Column: “Red Lion Revisited?


FAN 12.1 (First Amendment News) — First Amendment salon to be launched

In the spirit of advancing a more informed dialogue about free expression in America, this Monday the law firm of Levine Sullivan Koch & Schulz will host the first in a series of First Amendment salons. The idea behind the salon, says LSKS partner and salon co-chair Lee Levine, is to “engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion about some of the key free speech issues of our times.”Unknown

From time to time, the Salon will host a no-charge, 90-minute discussion concerning a contemporary Supreme Court case, book, article, legal brief, or memorandum. The by-invitation salons will take place at LSKS’s offices in Washington, D.C., New York, Philadelphia, and Denver. A reception will precede each discussion in order to develop a better sense of community. The first salon will be in New York City and will be streamed live by video conference to the firm’s office in Washington, D.C. so that attendees there can participate in the discussion.

The first salon features an exchange between Floyd Abrams and Steven Shapiro and will be moderated by Nadine Strossen. The discussion will focus on McCullen v. Coakley, the abortion protest case now before the Supreme Court.

The co-chairs of the salon are Ronald Collins, Lee Levine and David Skover. Those on the advisory board are: Floyd Abrams, Erwin Chemerinsky, Robert Corn-Revere, Robert O’Neil, Paul M. Smith, Geoffrey Stone, Nadine Strossen, and Eugene Volokh.

The next salon will occur in Washington, D.C.

First Amendment Case to be Argued this TuesdayRobson

This Tuesday the Court will hear oral arguments in the case of Lane v. Franks. The two issues in the case are: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action. This, of course, is the case that may well test the limits of the Court’s 5-4 ruling in Garcetti v. Ceballos (2006).

Professor Ruthann Robson has written an informative and thoughtful overview of the case for SCOTUSblog, which I highly recommend. (See also her weekly posts on First Amendment law, among other things, over at Constitutional Law Prof Blog.)

Last FAN Column: go here





FAN 12.0 (First Amendment News) — Red Lion Revisited?

E. Joshua Rosenkranz

E. Joshua Rosenkranz

More than a quarter-century ago, Professor Laurence Tribe declared: “The first amendment’s sweeping guarantees have been most compromised in the realm of the most modern medium: electronic broadcasting.” (American Constitutional Law, p. 1004: 1988).

Perhaps mindful of that contention, in his petition for certiorari Joshua Rosenkranz (who heads  Orrick’s Supreme Court and appellate litigation practice) urges the Court to reconsider its unanimous ruling in Red Lion Broadcasting Co. v. FCC (1969), which upheld the Fairness Doctrine over a First Amendment challenge. (Note: Archibald Cox and Erwin Griswold successfully represented the Respondents in the case. The ACLU filed an amicus brief submitted by  Melvin L. Wulf and Eleanor Holmes Norton in which they supported the First Amendment claims.)

The case is Minority Television Project, Inc. v. FCC and Lincoln Broadcasting Co. Here is how Mr. Rosenkranz (a former Justice Brennan law clerk) begins his brief on behalf of a public television broadcaster challenging the federal law in question:

The world has changed dramatically since 1969. In the Vietnam era, top television ratings went to Doris Day, not Duck Dynasty. Back then, the color television was a novelty and high-powered computers, using tape reels and punch cards, filled up an entire room. Today, people carry the same computing power, and color video screens, in their pockets and manipulate inputs with their fingertips. Back then, conventional over-the-air broadcasting was the only way to reach the American family in their living room with audiovisual content on news or public affairs. And technology at the time permitted only a limited number of stations to harness the airwaves effectively. Now, innumerable speakers can reach American families in their living rooms, and just about everywhere else, with almost unlimited audio- visual content on public affairs, news, and everything else imaginable.

That dramatic change is central here. In 1969, in Red Lion Broadcasting Co. v. FCC, this Court invoked the “scarcity” of conventional over-the-air broadcasting opportunities to hold that the First Amendment permits the government to regulate broadcasters more intrusively than all other speakers. But Red Lion’s premise is now profoundly wrong. Conventional over-the-air broad- casters no longer control access to Americans’ eyes and ears. And in any event, there are exponentially more broadcasters now than ever before.

In other words, as times change so, too, should the law. But whatever the fate of Red Lion, he adds, given the Court’s ruling in Citizens United v. FEC (2010), the Justices should apply strict scrutiny review to judge the constitutionality of restrictions on paid political messages that are broadcast. Finally, assuming intermediate scrutiny were to apply, his clients should still prevail since “the only evidence before Congress supposedly linking the ban to the interest that the government seeks to advance consists of guess- work lacking any concrete factual support.” There you have it, from the bold to the modest.

However convincing such arguments may be in the abstract, they failed to convince the Ninth Circuit sitting en banc. The vote was 8-3 with Judge M. Margaret McKeown writing for the majority. The Court sustained the law under intermediate scrutiny analysis and likewise denied the Petitioner’s over-and-underinclusive challenges, along with a facial vagueness challenge and an as applied challenge.

Judge Consuelo Callahan joined the majority’s opinion “only insofar as it
upholds 47 U.S.C. § 339(b)’s prohibition against paid advertisements by for-profit entities.” She dissented, however, from the majority’s “acceptance of § 339(b)’s prohibition of advertisements on issues of public importance or interest and for political candidates.”

Chief Judge Kozinski

Chief Judge Kozinski

Enter Chief Judge Alex Kozinski in dissent. “The United States stands alone in our commitment to freedom of speech,” he starts out. “No other nation,” he adds, “not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment.  These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, ‘uninhibited, robust, and wide-open.'”

From that high rhetorical platform, Judge Kozinski advanced some 11 weighty and related arguments:

  1. “The majority embraces every justification advanced by the government without the least hesitation or skepticism, and without giving proper weight to the true harms caused by the speech restrictions in question.”
  2. The rationale of Red Lion is no longer relevant.”I’m certainly not the first one to note that that rationale—whatever its merits at the time—no longer carries any force.”
  3. “We must . . .  be doubly skeptical: first, because the restriction is content-based and, second, because we have traditionally treated some of the prohibited speech with the greatest solicitude.”
  4. “[C]ommercialization, as that term is commonly understood, deals with commerce; it says nothing at all about advertising for political candidates or on issues of public interest.”
  5. “No one explains why political and issue ads are dangerous, if advertising for non-commercial entities (including product ads) isn’t. If legislators feared influence, why didn’t they worry about stations falling under the sway of non-commercial entities?”
  6. “Even if we look at the evidence developed after the legislation was passed—some of it decades later—there isn’t much to support the ban on political and issue ads.”
  7. “Issue ads can be quite important from a First Amendment perspective. Aside from generating revenue, which public television and radio stations can use to produce more and better programming, issue ads can help educate the public about some of the most significant questions of the day . . .”
  8. “[W]hat’s remarkable about the testimony presented to Congress is that they are nothing but concerns. The legislative record contains no documentation or evidence; there are no studies, no surveys, no academic analyses—nothing even as meaty as the
    rather anemic expert reports introduced by the government in our case. Sure, a lot of people worried that commercial advertising would wreck public broadcasting, but people worry about a lot of things that never come to pass. . . . It . . . seems wholly irrational to make undocumented claims about the likely behavior of public broadcast stations, were they allowed to air advertisements, without first considering the ways in which they differ from commercial entities.”
  9. “[S]tations that receive paid advertising revenue can acquire or produce programs that they could not otherwise afford. Thus, the loss of advertising revenue can’t be dismissed as simply a loss of money; it is, in fact, a loss of speech.”
  10. “[T]he evidence presented by the government in support of these speech restrictions simply doesn’t pass muster under any kind of serious scrutiny—the kind of scrutiny we are required to apply when dealing with restrictions on speech. Even if intermediate scrutiny applies—and I doubt that it does . . . — there is simply not enough there to satisfy a skeptical mind that the
    reasons advanced are rational, let alone substantial.”
  11. “Because ‘[t]he text of the First Amendment makes no distinctions among print, broadcast, and cable media,’ Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 812 (1996) (Thomas, J., concurring in the judgment in part), Red Lion and Pacifica represent a jarring departure from our traditional First Amendment jurisprudence.”

Amicus Brief 

Similar arguments along with others are offered in an amicus brief by Robert Corn-Revere filed on behalf of the Cato Institute. His central argument is that the Court “must abandon its technology-specific approach to the First Amendment, if only because to retain it would be tantamount to perpetuating a dangerous legal fiction. Furthermore, Corn-Revere maintains that “[c]ases upholding such regulations, like Red Lion, do not effect a minor adjustment in the applicable constitutional test. Instead, they represent “a complete conceptual reordering” of First Amendment principles and a “virtual celebration of public regulation” of the press. The difference in perspective is so radical it appears to come from “another world.” Lee C. Bollinger, Images of a Free Press 71-72 (1991). In this Bizarro World version of the First Amendment, up is down, black is white, and banning political speech is acceptable because of the “collective right” of viewers and listeners “to have the medium function consistently with the ends and purposes of the First Amendment.” Red Lion, 395 U.S. at 390. According to this philosophy, the government must destroy First Amendment rights in order to preserve First Amendment values.”

Will the Rosenkranz-Kozinski-Corn-Revere arguments ultimately prevail, or will Red Lion survive yet another 45 years of challenges? Stay tuned. Meanwhile, additional information concerning the history of the case is set out below.

The Law Challenged

47 U.S.C. § 399b, which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.

The Cases  

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FAN 11.4 (First Amendment News) — Liptak re Amending the First Amendment & Similar Proposals by Justice Stevens

If you have not yet seen it, take a look at Adam Liptak’s New York Times article titled “Justice Stevens’s Prescription for ‘Giant Step in Wrong Direction.’” It is quite good and in characteristic Liptak fashion elicits an important reply by way of an insightful question.  Here are a few excerpts:Unknown

Traces of Anger

There was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers. He said the Court had made a disastrous wrong turn in its recent string of campaign finance rulings. “The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.

“Misleading” Message 

Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”

Justice Souter’s (unpublished) Dissent

I asked Justice Stevens whether he, as the senior justice among the four dissenters, would have assigned the 2009 dissent.“I would and I did,” he said. And he more or less confirmed that the assignment went to Justice David H. Souter, as Jeffrey Toobin has reported in The New Yorker. “He was certainly a logical candidate to write the dissent,” Justice Stevens said of Justice Souter . . . . The draft dissent caused the majority to pause, Justice Stevens said, thanks to “the strong expression of the feeling among the dissenters that procedurally the case was not in the proper posture to reach the issue that they ultimately decided. I think it persuaded the majority that it would be better to have a re-argument so that they could not be accused of deciding something that had not been adequately argued,” he said. 

Amending the First Amendment — Prudent? 

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.” Or perhaps not

His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates. Justice Stevens said he would not go that far.“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”


More On Justice Stevens’ Proposal to Amend the First Amendment

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.


FAN 11.3 (First Amendment News) — The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

Over at SCOTUSblog, Lyle Denniston writes of  the Roberts Court’s continued “fascination with free speech and the First Amendment.” Indeed it is so. Having now decided 31 First Amendment free expression cases and sustaining such constitutional challenges in 14 of them, the Roberts Court has already carved out its own special (and often controversial) niche in the history of our free speech jurisprudence. DuSupreme_Court_US_2010ring that period, Chief Justice John Roberts has led the way with 11 majority or plurality opinions, followed by Justices Anthony Kennedy and Antonin Scalia with five such opinions each. Only two majority First Amendment free expression opinions have been authored by the Court’s women Justices–Golan v. Holder (2012) by Justice Ruth Bader Ginsburg and Milavetz, Gallop, & Milavetz v. United States (2010) by Justice Sonia Sotomayor. And Justice Elena Kagan’s sole First Amendment free expression opinion is her dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

Tomorrow the Court will hear oral arguments in the Susan B. Anthony List v. Driehaus case. Assuming that the Petitioners can get past the ripeness issue (which is a First Amendment concern), the case could prove to be yet another important one concerning not only false speech, but also speech expressed in the election context.

Meanwhile, we await a ruling in McCullen v. Coakley, another abortion protest bubble zone case that could obliterate or significantly undermine the Court’s 1999 ruling in Hill v. Colorado. Should the Court sustain the First Amendment claim in that case, Justice Kennedy (who dissented in Hill) might well author the majority opinion.

Against that general backdrop, here is a snapshot of the free expression cases (both First Amendment and otherwise) before the Roberts Court this term.

Decided Cases

Cert Granted

Already Argued & Ruling Pending 

Awaiting Argument 

Selected Pending Cases: Petition Stage


Justices Scalia & Ginsburg on the First Amendment

Screen Shot 2014-04-20 at 8.20.08 AM

In case you missed it, you can go to YouTube and see Marvin Kalb’s interview with Justices Antonin Scalia and Ruth Bader Ginsburg. The C-SPAN interview focused on the two Justices’ views on select First Amendment free speech and press issues. Here are a few highlights:

Justice Scalia: Re: newspapers: “I don’t read the [Washington] Post.”

Re: NYT v. Sullivan“I don’t recall whether it was unanimous; I’m not sure it was. [At this point Mr. Kalb interjected: “It was; it was 9 nothing.”] Even so, it was wrong. The issue is not whether it’s a good idea to let . . . anybody [Justice Scalia paused here and began his sentence anew] What New York Times versus Sullivan holds is that if you are a public figure — and it’s been a matter of some doubt what it takes to become a public figure, and certainly any politician is a public figure — if you are a public figure, you cannot sue somebody for libel unless you can prove, effectively, that the person knew it was a lie. So long as he heard from somebody, you know, it makes it very difficult for a pubic figure to win a libel suit. I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libeled with impunity. And when the Supreme Court came out with that decision, it was revising the Constitution. Now, it may be a very good idea to set up a system that way, and New York State [Alabama] could have revised its libel laws by popular vote to say that if you libel a public figure, it’s okay unless it’s malicious. But New York State [Alabama] didn’t do that. It was nine lawyers who decided that is what the Constitution ought to mean, even though it had never meant that. And that’s essentially the difference between Ruth and me concerning a ‘living constitution.’ She thinks that’s all right and I don’t think it’s all right.” 

Note: As Justice Scalia is aware, the precise issue in Sullivan involved public officials, whereas the public figure issue was addressed subsequently in other cases such as as Curtis Publishing Co. v. Butts (1967). See Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 65-107 (2014).

Justice GinsburgRe: NYT v. Sullivan: The opinion “is now well accepted. . . .I think the Founding Fathers would have agreed with it in the 1960s.”

Re tweets & Twitter: “A great danger for people who use those devices is you can’t take it back. You know, once you let it out, it’s there for everybody to see for years.”

Re televising Supreme Court arguments: “I think it’s probably inevitable” and “there’s so much pressure for it.” Nonetheless, she was “very much concerned of misportraying” what occurred in court.


More On Justice Stevens’ Proposal to Amend the First Amendmentjustice-stevens 

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.



FAN 11.2 (First Amendment News) — C-SPAN: A Conversation with Justices Scalia & Ginsburg on the First Amendment

On C-SPAN: Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join host Marvin Kalb at the National Press Club to talk about the First Amendment as well as the origins and contemporary meaning of freedom.

WASHINGTONOne sentence, just 45 words in length, proclaims and promises the freedoms that define American democracy. The First Amendment to the U.S. Constitution guarantees the right to freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the right to petition one’s government. It is the duty of the justices of the Supreme Court of the United States to interpret the constitution and to rule on the legality of legislation.

On the next edition of The Kalb Report, Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join journalist/scholar Marvin Kalb to offer their views of those 45 words in a rare glimpse behind the gavel and inside one of our nation’s vital branches of government.images

The Kalb Report will take place on April 17 at 6 p.m. in the main ballroom of the National Press Club, 529 14th St., NW, in Washington, D.C.

“I am honored to host this program with two justices of the Supreme Court and to discuss their interpretations of the First Amendment guaranteeing our national freedoms, including freedom of the press,” said Mr. Kalb. “I would also love to hear their views on the broader subject of freedom–what is its origin, and what does it mean today?”

The Kalb Report series is produced jointly by The National Press Club Journalism Institute, the George Washington University School of Media and Public Affairs, Harvard University’s Shorenstein Center, University of Maryland University College and the Philip Merrill College of Journalism at the University of Maryland.

For the 11th consecutive year, the series is underwritten by a grant from Ethics and Excellence in Journalism Foundation.

Since 1994, the partnership has produced 83 forums with guests including Walter Cronkite, Rupert Murdoch, Diane Sawyer, Roger Ailes, Katie Couric, Bill O’Reilly, Bob Costas, Hillary Clinton, Ken Burns, and Nobel Prize winner Elie Wiesel. In 2012, The Kalb Report was honored with both a Gold World Medal and the overall Grand Award in the New York Festivals International Radio Awards competition.

The Kalb Report series is distributed nationally by American Public Television. Oklahoma Educational Television Authority serves as the presenting station. The Kalb Report also airs on the public radio channels of Sirius—XM Satellite Radio, Federal News Radio in Washington, D.C. (1500 AM), District of Columbia Cable Television, University of Maryland Cable Television, and NewsChannel 8 in Washington, D.C. Each program is also streamed live at press.org and kalb.gwu.edu.

Moderator Marvin Kalb is Edward R. Murrow Professor Emeritus at Harvard University’s Kennedy School of Government. Over the course of his distinguished 30-year career in broadcast journalism, Mr. Kalb served as chief diplomatic correspondent for both CBS News and NBC News, and moderator of Meet the Press. He went on to serve as the founding director of Harvard’s Joan Shorenstein Center on the Press, Politics and Public Policy. Among his many honors are two Peabody Awards, the DuPont Prize from Columbia University, the 2006 Fourth Estate Award from the National Press Club and more than a half-dozen Overseas Press Club awards. Mr. Kalb has authored or co-authored 13 nonfiction books and two best-selling novels. His latest book is “The Road to War: Presidential Commitments Honored and Betrayed.”

Executive Producer Michael Freedman is a senior vice president and professor of the practice at University of Maryland University College, as well as a professorial lecturer in journalism at the George Washington University. Mr. Freedman is the former general manager of CBS Radio Network News, and former managing editor for the broadcast division of United Press International. He is the recipient of more than 85 honors for journalistic excellence including 14 Edward R. Murrow Awards.

Senior Producer Heather Date is an associate vice president at University of Maryland University College and former CNN producer. She is the recipient of the Alliance for Women in Media’s 2011 Gracie Award for Outstanding Producer of a News Program for her work on The Kalb Report.

Lindsay Underwood, a 2011 graduate of George Washington University’s School of Media and Public Affairs, is the associate producer of The Kalb Report.

Web Editor Bryan Kane is a senior at George Washington University.

The Kalb Report series is directed by Robert Vitarelli, a 39-year CBS News veteran and a Directors Guild of America Lifetime Achievement Award winner.




FAN 11.1 (First Amendment News) — Winners of 2014 Hugh M. Hefner First Amendment Awards


Hugh Hefner

The Hugh M. Hefner Foundation has just announced the winners of the 2014 Hugh M. Hefner First Amendment Awards. Christie Hefner established the Awards in 1979, in conjunction with Playboy magazine’s 25th anniversary, to honor individuals who have made significant contributions in the vital effort to protect and enhance First Amendment rights for all Americans. The awards will be presented on Tuesday, May 20, 2014, followed by a reception for past winners, journalists, government officials, and civic leaders at the Knight Conference Center at the Newseum in Washington, D.C.

A Lifetime Achievement Award will be bestowed on Norman Dorsen, who, for more than a half-century, has been at the forefront of the fight to advance fundamental freedoms and protect civil rights and civil liberties. Since 1961, Dorsen has taught as the Frederick I. and Grace A. Stokes Professor of Law at New York University School of Law. He is the co-director of the Arthur Garfield Hays Civil Liberties Program and was the founding director of NYU’s Hauser Global Law School Program in 1994. Dorsen served as General Counsel of the American Civil Liberties Union (1969-1976), and then as its president (1976-1991). Dorsen has argued many Court cases, wrote the brief for Brandenburg and appeared amicus curiae in theGideon case, the Pentagon Papers case and the Nixon Tapes case.

Award winners, many of whom are unsung heroes, come from various walks of life, including Muneer Awad (Government), former Executive Director of the Council on American-Islamic Relations Oklahoma Chapter, who successfully challenged the implementation of an amendment to ban Sharia and International law that violates the U.S. Constitution and targets Oklahoma’s Muslim-Americans.

Glenn Greenwald (Journalism), political journalist, lawyer, author, blogger and columnist, who published the first in a series of reports detailing NSA surveillance programs based on classified documents leaked by Edward Snowden.

Mary Beth Tinker and Mike Hiestand (Education), for organizing the Tinker Tour, a national free speech and free press tour to promote the First Amendment through the stories of young people. This past school year, the Tinker Tour traveled to schools in 31 states, the District of Columbia and two countries.

Thomas Healy (Book Publishing), author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Henry Holt & Co., 2013). Professor Healy is a Professor of Law at Seton Hall and teaches Constitutional Law, the First Amendment and Federal Courts and Criminal Procedure.

Christopher Finan (Law), President of the American Booksellers Foundation for Free Expression, for presenting key issues of the impact of the attacks of 9/11 on First Amendment rights to middle and high school students in his book, National Security and Free Speech: The Debate Since 9/11(IDEBATE Press, 2013).

This year’s Master of Ceremonies will be Christie Hefner, Chairperson and founder of the Hugh M. Hefner First Amendment Awards.

{From April 16, 2014 press release}

Previous Winners: (go here)

Last FAN 11 Column (go here)


FAN.11 (First Amendment News) — Encouraging Suicide, First Amendment Protected?


{see news item after one immediately below re suicide case}

Barcelona, April 14, 2014. I’m walking down a narrow street in Spain when I come upon a large town square (Plaza de San Jaime). Turns out that it’s the site of the offices of the Generalitat de Catalunya (a national entity) — the perfect place for dissidents to gather to protest against this or that or for this or that. On this day, the protestors were preparing for a rally to champion their anti-monacrchist movement. Mind you, I don’t have a horse in this race, if only because I know next to nothing about the history and politics of Spain . . . other than Francisco Franco was a murderous tyrant. Still, the sight of dissent is, for me, a welcome one. That people may freely assemble and voice their grievances is always a good sign. Make of them what you will, but I stand firmly with them when it comes to exercising such rights of dissent. Of course, it’s always easier when you agree with the cause, but such a narrow mindset misses the point of peaceful dissent — that others may actually loathe what we hold dear and thus attempt to change our world. Those others may be anti-monarchists in Spain or anti-abortionists in South Carolina. Where freedom is the constituted form of government, free speech means that such dissidents deserve their day in the courtyard of public opinion. By that measure, I say bully for the guy with the rebellious flag, his fist-a-flyin’, who has the bravado to protest in front of the seat of power. 

Minnesota Court Rules that First Amendment Protects Encouraging a Suicide

My friend Professor Sherry Colb has just posted an informative and thoughtful piece on the Verdict blog concerning a recent ruling by the Minnesota Supreme Court in the case of State of Minnesota v. Melchert-Dinkel. The case involved a First Amendment challenge to a state statute that provided:“Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.” The free speech issue in the case was whether advising or encouraging or assisting suicide falls within one of the traditionally unprotected categories of speech. By a 4-1 vote, the Court held that the sections of the law in question violated the First and Fourteenth Amendments. Justice Alan C. Page dissented (two Justices did not participate).

Justice G. Bary Anderson began his majority opinion with the following statement: “After communicating with appellant William Melchert-Dinkel, Mark Drybrough and Nadia Kajouji each committed suicide.” Later, he added: “Posing as a depressed and suicidal young female nurse, Melchert-Dinkel responded to posts on suicide websites by Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Canada. In each case, he feigned caring and understanding to win the trust of the victims while encouraging each to hang themselves, falsely claiming that he would also commit suicide, and attempting to persuade them to let him watch the hangings via webcam. Drybrough, who was 32 years old at the time Melchert-Dinkel contacted him in 2005, had suffered from significant mental and physical health problems for many years . . . . His contact with Melchert-Dinkel began after the appellant responded to Drybrough’s posting in an online forum about suicide asking about methods to commit suicide by hanging without ‘access to anything high up to tie the rope to.’ Melchert-Dinkel described how to commit suicide by hanging by tying a rope to a doorknob and slinging the rope over the top of the door. . . . . On March 1, 2008, 19-year-old Nadia Kajouji of Ottawa, Canada, posted a message on a suicide website asking for advice on suicide methods that would be quick, reliable, and appear to be an accident to her family and friends. Five days later, Melchert-Dinkel responded, pretending to be a 31-year-old emergency room nurse who was also suicidal. Again, he presented himself as a caring and compassionate friend who understood Kajouji’s plight and wanted to help.”

Mark Drybrough hung himself to death while Nadia Kajouji jumped off a bridge, contrary to Melchert-Dinkel’s advice that she hang herself immediately. She, too, died as a result of her actions.

Professor Colb analyzed the relevant categories of unprotected speech — fraud, incitement, and encouraging criminal activity — to determine their fit, if any, to the facts of the case. She concluded that “advising or encouraging a suicide in a direct and targeted manner, which the law in question contemplates, does not fall within the protection of the First Amendment, as it represents incitement to imminent lawlessness.” By contrast, she noted: “In the very different context of physician-assisted suicide, for instance, my view would be that a doctor should be allowed to provide assistance to a patient but should never be allowed to try to persuade an ambivalent patient that he really should go ahead and end his own life.”

In a future column I hope to add a few thoughts of my own and invite some First Amendment types weigh in to see how they might analyze this case. Stay tuned. Meanwhile, take a look at Sherry’s more extended post on the case over at the Dorf on Law blog.

Another “Free Speech Zone” Falls. According to an Associated Press report: “The Virginia Community College System has agreed to suspend its student demonstrations policy in response to a lawsuit filed by Thomas Nelson Community College student Christian Parks. Both sides have asked a federal judge in Norfolk to put the case on hold until May 2 while a new policy and settlement details are negotiated.” Mr. Parks was represented by David Hacker of the Alliance Defending Freedom. Free speech zones like the Virginia Community College one are consistently defeated in court. Even so, according to  Greg Lukianoff (president of the Foundation for Individual Rights in Education), as of last November “one in five public four-year colleges we surveyed had unduly restrictive free speech zone policies.” (See here.) 

Conflict in DC Circuit — The Meat & Minerals Cases In FAN.9 I mentioned the  American Meat Institute v. AGRI (D.C. Cir., March 28, 2014) case. That’s the controversy involving  a federal rule that requires, among other things, country-of- origin labeling (“COOL”). Since that post, the Courts of Appeals for the District of Columbia has agreed to hear the case en banc. In a related matter, and as Professor Ruthann Robson has recently noted,the D.C. Circuit just handed down a significant decision in National Association of Manufacturers v. Securities and Exchange Comm’n. The majority opinion was authored by Senior Judge A. Raymond Randolph with Judge David Sentelle joining him and Judge Sri Srinivasan concurring in part. The panel held that a part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. § 78m(p)(1)(A)(ii) & (E)) ran afoul of the First Amendment. Read More


FAN 10.1 (First Amendment News) The 2014 Jefferson Muzzles are Here! — 2015 Candidates in Wings

Since 1992, the Thomas Jefferson Center for the Protection of Free Expression has celebrated the birth and ideals of its namesake by calling attention to those who in the past year forgot or disregarded Mr. Jefferson’s admonition that freedom of speech “cannot be limited without being lost.”

Announced on or near April 13—the anniversary of the birth of Thomas Jefferson—the Jefferson Muzzles are awarded as a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment.TJCenter-copy

As the Center sees it, because the importance and value of free expression extend far beyond the First Amendment’s limit on government censorship, acts of private censorship are not spared consideration for the dubious honor of receiving a Muzzle.

So, Ladies and Gentlemen, by way of the Thomas Jefferson Center, I present you the

2014 Jefferson Muzzles

Re: 2013 Muzzles, go here

On a related point, see David Berstein’s “Brandeis University’s Double Standard on Honorary Degrees,” Volokh Conspiracy, April 9, 2014.

If Josh Wheeler and the folks at the Jefferson Center are considering candidates for the 2015 Muzzles, check out John L. Smith’s column entitled “Government in full force to corral cattle, First Amendment,” Las Vegas Review-Journal, April 7, 2014. As Smith  put it:

Perhaps I’ve led a sheltered life, but . . . I had never set foot in a First Amendment Area. On Saturday, the lot was otherwise empty. There were no fiery voices of libertarian protest, no throng of angry Nevada ranchers with rifles in their pickups, not even a gaggle of curious tourists or a covey of head-scratching reporters. Of course, the fact the free-speech pen was located several miles from Bundy’s ranch and even farther from the federal government’s corral of “trespass cattle,” the lack of attendance was understandable. (By Monday, the voices of peaceful protest would increase considerably a few miles up the road near the banks of the Virgin River.)

Adds Smith: “A sign marks a ‘First Amendment area’ to designate where protesters can protest near Bunkerville.” See lonely “First Amendment Area” below in pic. Turns out that sometime later a protester ventured out with an American flag and placard that read: “The First Amendment is not an area.”

web1_bundy_040114JL_09_4Last FAN.10 Column: (“Justice Stevens’ Proposal to Amend the 1st Amendment”) go here

Next Scheduled FAN Column: April 16th