Tagged: Supreme Court


FAN 86 (First Amendment News) Court may rule on occupational-speech petition soon

The United States Supreme Court has said that “the constitutional right of free expression is powerful medicine.” Powerful and essential, and it needs to be administered to everyone, including physicians and those regulating their practice. Laurence Tribe

Most occupational licensing laws – at least those involving professions that have traditionally been subject to significant regulation – should not trigger rigorous review under the First Amendment, even if these laws regulate on the basis of the content of the speaker.Vikram Amar

The case is Hines v. Alldredge and the issue in the case is whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review. The case was considered by the Justices in their Conference yesterday.

Dr. Ronald Hines

Dr. Ronald Hines

Facts: Texas requires veterinarians to conduct a physical examination of an animal on its premises before they can practice veterinary medicine on that animal. That law gave rise to a First Amendment challenge owing to the fact that Ronald Hines, a retired Texas-licensed veterinarian, launched a website and posted articles about pet health and care. As the Fifth Circuit noted when the case was before a three-judge panel, “these general writings soon turned to more targeted guidance . . . . [whereupon Dr. Hines] began ‘to provide veterinary advice to specific pet owners about their pets.’ This advice was given via email and telephone calls, and Hines ‘never physically examine[d] the animals that are the subject of his advice,’ though he did review veterinary records provided by the animal owners. . . . Hines charged a flat fee of fifty-eight dollars for his veterinary advice, though he would waive this fee if a pet owner could not afford to pay. He did, however, refuse to give advice if he felt that a physical examination was required, and he did not prescribe medication.”

“In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law.” Thereafter, he was placed on one year probation, received a stayed suspension of his license, and had to pay a $500 fine. He was also required to  retake the jurisprudence portion of the veterinary licensing exam.

Dr. Hines challenged the Texas law and sought declaratory and injunctive in federal court. He challenged the physical examination requirement as applied to him as a violation of his rights under the First Amendment Fourteenth Amendments (Due Process and Equal Protection).

Circuit Court ruling: In an opinion by Judge Patrick Higginbotham, the Fifth Circuit denied those challenges.  In that regard, Judge Higginbotham declared: “Whether Hines’s First Amendment rights are even implicated by thisregulation is far from certain. In defining the permitting practice of veterinary medicine for which its license is required, Texas only imposes a narrow requirement upon the veterinarian. But surely, if this restriction on the veterinarian’s medical practice is within its scope, it is but incidental to the constraint, and denies the veterinarian no due First Amendment right.”

→ Cert. Petition: A petition for certiorari was filed by Jeffrey Rowes, counsel of record, along with Dana Berliner and Matt Miller, all from the Institute for Justice. In their brief they argue:

Jeffrey Rowes

Jeffrey Rowes

“This Petition raises a matter of first impression in this Court about occupational speech. While such speech is widespread, this Court has never squarely addressed its constitutional status. The Fifth Circuit below held that restrictions on veterinary-medical advice are not subject to First Amendment scrutiny. There is now a direct, outcome-determinative split of authority between the Fifth and Eleventh Circuits on the one hand, and the Third and Ninth Circuits on the other, over whether the First Amendment protects medical advice. More generally, the decision below also deepened intractable splits of authority over whether restrictions on occupational speech are ever subject to First Amendment scrutiny.” Thus, they argue:

  1. “Occupational speech cannot be classified as conduct and stripped of First Amendment protection because the distinction between general speech and occupational speech is itself a content-based distinction,” and
  2. “The government’s motive in regulating occupational speech does not remove that speech from the First Amendment.”

Amicus briefs have been submitted by:

Supporting Petitioner

Related Scholarly Works

→ Recent Blog Posts 

First Amendment Salon: Abrams & Post on Reed v. Gilbert Read More


FAN 85 (First Amendment News) “Is phone sex violent?” — Posner challenges lawyer in online classified advertising case

There’s no sex in your violence — Bush, “Everything Zen

Judge Richard Posner

Judge Richard Posner

Seventh Circuit Judge Richard Posner was in a plucky mood last week when Backpage,com v. Dart was argued before his panel, which included Judges Diane Sykes and Kenneth Ripple. ) More about Judge Posner (and sex) shortly, but first a few things about the case.

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

→ District Court: Backpage.com went to federal court and first sought a temporary restraining order and later a  preliminary injunction based on First Amendment grounds. District Judge John J. Tharp Jr. presided over the case. “In arguing that it is likely to succeed on the merits,” said Judge Tharp, “Backpage contends that Dart’s actions constitute precisely the type of informal prior restraint condemned as a First Amendment violation in Bantam Books, Inc. v. Sullivan (1963).” Judge Tharp thus concluded: “The Court makes no judgment as to the merits of Backpage’s claims, and any factual findings it has made are preliminary only and not binding in any proceedings on the merits.” On August 21, 2015, the court denied Backpage.com’s motion for a preliminary injunction, thought it had previously granted a TRO in the case. In any event,  Backpage.com appealed.

 The Cato Institute filed an amicus brief as did the Center for Democracy & Technology (see here) in support of the Petitioner.

Excerpts from Oral Arguments in the 7th Circuit

Below are select excerpts, which I transcribed, from the oral arguments in the Seventh Circuit. The arguments began with a presentation by Robert Corn-Revere. Judge Posner did not pose any questions to Appellant’s counsel anytime during the arguments, though Judges Sykes and Ripple did ask a few questions. Ms. Hariklia Karis argued on behalf of Appellee Sheriff Dart. Her arguments, by contrast, were met at the outset and thereafter with vigorous questioning from Judge Posner as indicated by the excerpts below.

Judge Posner: “You know, a police official has to be very careful in what he says. This is not Tom Dart as a private citizen, writing a letter to a newspaper or something, saying he doesn’t like Backpage. This is all done, office of the Sheriff, official stationary  — well anybody receiving an offcial communication from a sheriff is going to feel there is an implicit threat to follow this up with legal action.”

Ms. Karis: “Your honor, both VISA and Mastercard have both established that they did not receive or perceive this an an offical threat. . . .”

Judge Posner: “You believe that?”

Ms. Karis: “I absolutely believe that, and the the evidence is undisputed –“

Judge Posner: “Well, that’s ridiculous. These people, these companies do not feel they can defy an official . . . There’s nothing, you know, that Dart has.”

Ms. Karis: “VISA has spoken and submitted an affidavit in this court, which the district court considered, in which their vice-president for global brand reputation specifically said [that] he did not view the letter –“

Judge Posner: “Well what do you expect them to say?”

Ms. Karis: “Your honor –“

Judge Posner: “We’re knuckling under to threats? . . . Look, the tone of [the Sheriff’s letters] is so unprofessional. He talks about a violent industry; is phone sex violent? . . . “

Ms. Karis: “It can be.”

Judge Posner: “Really?”

Ms. Karis: “It certainly can.”

Judge Posner: “How?”

Ms. Karis: “Depending on whether children are involved — “

Judge Posner: “We’re not talking about children here. . . . And all the adults are getting swept up with the children?”

Ms. Karis: “The adults are not getting swept up with the children.”

Judge Posner: “Well they are. Adults who participate [chuckling] in phone sex with each other are potential targets. And what about old people, old men [chuckling] who would like to be seen with a young woman. Right? That is an aspect of the escort service; it’s not all sex!”

Ms. Hariklia Karis

Ms. Hariklia Karis

Ms. Karis: “Sheriff Dart did not take down the content or propose to take down the content of Backpage’s webpage, which was not illegal conduct. MasterCard in particular, to your Honor’s question of the recipient receiving this and what can they say, MasterCard had already decided that they no longer wanted to be affiliated with Backpage one week before Sheriff Dart ever sent that letter out. That evidence is undisputed.”

 Judge Posner: “Well, I’m sure that VISA and MasterCard don’t want to spend their time fending off whacks from Sheriff Dart. Right? These companies make a decision. Right? They don’t want to be slandered by a high government official.” Read More


FAN 84 (First Amendment News) Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending

It’s been almost 15 years since the Court last heard a First Amendment case involving the press — Bartnicki v. Vopper (2001). That was during the Rehnquist Court era and four of the Justices that sat on that case (Rehnquist, Stevens, Souter, and O’Connor) have been replaced (by Roberts, Alito, Kagan, and Sotomayor). What does that portend for the institutional press? Media lawyers are asking just that question in light of a cert. petition pending before the Court.

The case is Sun-Times Media, LLC v. Dahlstrom. Here are the issues before the Court:

  1. Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
  2. whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
  3. whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
  4. whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”

In his cert petition on behalf of Petitioner, Damon Dunn offered the following First Amendment arguments:

  1. “The Seventh Circuit Destabilized Decades of First Amendment Jurisprudence by Allowing the Press to be Sanctioned for Truthful Reporting on Matters of Public Safety”

a. “The Seventh Circuit adopted a balance that chills speech by allowing a judge to limit First Amendment     protections to the passages deemed most important”

b. “The Seventh Circuit unnecessarily answered the Bartnicki question and got it wrong by shifting the verification burden from the government to the press”

c. “The DPPA cannot withstand constitutional scrutiny if it can be utilized to chill investigative reports on public officials that pose no safety risk to them,” and

d. “The Seventh Circuit undercut constitutional protections for news gathering.”

 → In its brief in opposition, the Solicitor General’s Office argued that

  1. “the doctrine of constitutional avoidance . . .  has no application here. Petitioner’s statutory interpretation is not a plausible one.”
  2. The government also argued that “[t]he only constitutional claim petitioner raises in this Court is an alleged First Amendment right to disseminate information that it unlawfully obtained. As the court of appeals recognized, that claim lacks merit. . . . Each of the decisions that petitioner cites . . . is one in which the information was obtained lawfully by the entity that disseminated it (although the disseminating entity’s source may have originally obtained the information through unlawful behavior in which the entity was not involved). And the cited decisions indicate that the government has strong and legitimate justifications for preventing the dissemination of information by a person who acted unlawfully in obtaining it—including an interest in effectively deterring ‘the initial unlawful acquisition of that same information.'”
Katie Townsend

Katie Townsend

According to Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, “what is particularly troubling about this case is that the 7th Circuit concluded that a newspaper could be held liable under the DPPA both for obtaining information in violation of the DPPA and for publishing that information. From our perspective, this case raises very real concerns about the possible limits of Bartnicki in cases involving the publication of information that a newspaper knows (or in a Court’s view should know) was obtained unlawfully.”

[ht: Tony Mauro]

Floyd Abrams Defends (Most) Donor Disclosure Laws

In a letter to the Wall Street Journal contesting its editorial opposition to donor disclosure laws, Floyd Abrams wrote:

[Y]our opposition to disclosure requirements as reflected in your editorial “Show Us Your Donors” (Nov. 5) is not only at odds with Citizens United but with virtually all Supreme Court rulings in this area and the views of all but one of the present members of that Court. . . .

It is true that if a showing can be made that the effect of disclosure in a particular case would be, as the Court put it in Citizens United, that a “group’s members would face threats, harassment or reprisals if their names were disclosed” that a serious constitutional issue might be raised. But that is the exception, not the norm, and there is no basis to conclude that since disclosure might lead to public criticism, that is reason enough to avoid the obligation to disclose, let alone to hold it unconstitutional. . . . 

 See FAN 83.2 (First Amendment News) “Court Declines to Hear Compelled Disclosure Case”

Quote of the Week . . . from Justice Kennedy re Citizens United Read More


FAN 83.2 (First Amendment News) Court Declines to Hear Compelled Disclosure Case

This morning the Supreme Court declined to hear Center for Competitive Politics v. HarrisThe issues in the case were twofold:

  1. Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and
  2. whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.

UnknownThe case involved a California law that requires tax-exempt charitable organizations to file reports with the state Registry of Charitable Trusts. Pursuant to that law, California Attorney General Pamela Harris required such charities to submit a list of the names and addresses of its major donors. Thus, all charities soliciting donations in California must provide the state A.G. with a copy of their IRS 990 form, which contains such donor information. That information is not made public but is used by the state A.G. to ensure compliance with the law and to safeguard against fraud and illegality.

The California law was challenged by the Center for Competitive Politics (a 501(c)(3) that works on election law). Pursuant to 42 U.S.C. § 1983, the Center sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of its “significant donors.”

A panel of the Court of Appeals for the Ninth Circuit rejected the Center’s claims that such compelled disclosure violated its First Amendment associational rights.

Today the Supreme Court denied the Center’s petition for a writ of certiorari, which had been filed by the Center’s legal director Allen Dickerson.

Amicus briefs in support of the Petitioner were filed by the Cato Institute (Ilya Shapiro), American TargetAdvertising, Inc. and 57 Nonprofit and Other Organizations (Mark Fitzgibbons), Institute for Justice (Diana K. Simpson), Pacific Legal Foundation (Timothy Sandefur), Center for Constitutional Jurisprudence (John. C. Eastman), The Philanthropy Roundtable (Allyson N. Ho), and the States of Arizona, Michigan, and South Carolina (John R. Lopez, IV).


  1. George Will, “The Supreme Court’s opportunity to tackle sinister trends,” Washington Post, November 4, 2015 (urging review)
  2. Editorial, “Show Us Your Donors,” Wall Street Journal, November 4, 2015 (urging review)
  3. Lyle Denniston, “Group seeks privacy for donor list,” SCOTUSblog, May 15, 2015
  4. Edward Pettersson, “Koch Group Gets to Keep Donors Secret in California Lawsuit,” Bloomberg Business, February 17, 2015 (discussing District Court ruling by Judge Manuel Real in favor of Petitioners).

FAN 83.1 (First Amendment News) Momentum Builds in Right of Publicity Case — Volokh & Rothman File Amicus Brief Urging Review

Professor Jennifer Rothman

Professor Jennifer Rothman

The momentum is building in Electronic Arts, Inc. v. Davis, the Right of Publicity case in which Paul M. Smith recently filed a cert. petition. In what may be shaping out to be the most important First Amendment case of this Term, Smith has just received some impressive support by way of an amicus brief to be filed later today by UCLA Law Professor Eugene Volokh and Loyola, Los Angeles, Law Professor Jennifer Rothman. Twenty-nine noted scholars signed onto their brief (see listing below).

If ever there was cert-worthy case — a case in which the cert. stars seem to be aligning — the EAI case is the one. The circuit and state courts are all over the conceptual map with assorted and conflicting tests being used in the SecondThirdFifthSixthEightNinthTenth, and Eleventh Circuits and in the FloridaKentucky, and Missouri Supreme Courts. Confusion abounds, and this as asserted First Amendment rights twist in the varying doctrinal winds.

Enter Volokh and Rothman, two scholars quite familiar with this intersection of tort law and the First Amendment.  Here is how they open their brief: “The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other ‘attributes’ ‘of identity.’ The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.” (notes omitted)

“Unfortunately,” they add, “there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving com- mercial advertising, which is less constitutionally protected than other speech). Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.” (note omitted)

Professor Eugene Volokh (credit: UCLA Magazine)

Professor Eugene Volokh (credit: UCLA Magazine)

Because of the confusion in the lower courts, Volokh and Rothman argue that this “state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred.”

The rulings in Davis v. Electronic Arts, Inc. (9th Cir. 2015) and Keller v. Electronic Arts, Inc. (9th Cir. 2013), they stress, “also treat the First Amendment defense to the right of publicity as weaker than the First Amendment defense to trade- mark law. This too merits this Court’s review.”

Below is the list of scholars who signed onto the amicus brief:

  1. Jack Balkin
  2. Barton Beebe
  3. Erwin Chemerinsky
  4. Stacey L. Dogan
  5. Jay Dougherty
  6. Gregory Dolin
  7. Eric M. Freedman
  8. William K. Ford
  9. Brian L. Frye
  10. William T. Gallagher
  11. Rick Garnett
  12. Jon M. Garon
  13. Jim Gibson
  14. Eric Goldman
  15. Stacey M. Lantagne
  16. Mark A. Lemley
  17. Raizel Liebler
  18. Barry P. McDonald
  19. Tyler Ochoa
  20. Aaron Perzanowski
  21. Lisa P. Ramsey
  22. Kal Raustiala
  23. Martin H. Redish
  24. Betsy Rosenblatt
  25. Steven H. Shiffrin
  26. Christopher Jon Sprigman
  27. Geoffrey R. Stone
  28. Rebecca Tushnet
  29. David Welkowitz

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


What does it mean to vindicate a First Amendment right of free expression?

The following short essay is substituting for this week’s issue of First Amendment News, which will resume next week.

* * * *

In times past if you wanted to get a real sense of the Supreme Court’s record on civil liberties you prepared charts indicating the Justices’ voting record in sustaining a claim of right. Take, for example, C. Herman Pritchett’s The Roosevelt Court: A Study in Judicial Politics and Values (1948). In chapter 9 of that book (p. 254, table 23) he calculated the percentage of times each Justice voted “pro” in civil liberties cases. Likewise in Civil Liberties and the Vinson Court (1954), he did something of the same. In chapter 10 of that book (p. 225, table 10), he calculated the percentage of times each Justice voted to “support . . . libertarian claims.” Justices Frank Murphy and Wiley Rutledge were at the top with a 100% record, while Chief Justice Fred Vinson and Justice Stanley Reed were well below at the bottom.

imagesHelpful as such studies were in past times, I wonder about their value in today’s tug-and-pull First Amendment world of free expression cases. Consider, for example, the record of the Roberts Court in the 41 such cases its has decided since 2006. It has upheld a First Amendment claim of right in 17 of 41 cases (in one case, a per curiam, the Court vacated and remanded the matter). That is a 41% record. But is it a 41% record of vindicating such First Amendment rights?

In one sense, the answer is simple: yes. The parties raised a First Amendment claim and a majority of the Court sustained it. End of story. Or is it?

To raise this question is to raise a more puzzling one. What exactly does it mean to vindicate a First Amendment freedom of expression claim? In today’s volatile atmosphere of supercharged liberalism and fortified conservatism, it can mean almost anything depending on which side of the ideological fence one stands. If you have a collective or “democratic” political-theory view of the Amendment — e.g. like that of Justice Stephen Breyer or Dean Robert Post or Professor Burt Neuborne — then that very much informs your constitutional calculus as to whether a First Amendment right has been vindicated or violated. By that collective constitutional measure, the “fairness doctrine” and he “net neutrality” one are formulas for vindicating First Amendment rights. But that view is radically different from, say, an atomistic understanding of the First Amendment like the one championed by Chief Justice John Roberts, Justice Anthony Kennedy, Floyd Abrams, and the Cato Institute.

Perhaps this is a modern-day version of an old debate. Merely consider the thinking displayed by Justice Byron White in his dissent in Gertz v. Welch (1974): “It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head.” Likewise, analyzing the relationship between the First Amendment and copyright law created a sharp division in the Court in Harper & Row v. Nation Enterprises (1985) owing to the similar problem of a constitutional guaranty at war with itself. What makes such “constitutional tension unusual, as Professor Eugene Volokh once tagged it in a slightly different context,” is the conflict between opposing views of the First Amendment as to what it means to vindicate that right. After all, the tension here is not between the First Amendment and other rights (such as equal protection or a right to a fair trial), but between the First Amendment and itself.

To return to the free-speech mindsets of Breyer, Post , Neuborne and company, cases such as McCutcheon v. FEC (2014) and Citizens United v. FEC (2010) — both of which sustained rights claims — cannot be listed in the “pro” First Amendment column. Worse still, they are listed as “anti” First Amendment rulings. Much the same could be said of Harris v. Quinn (2014) where the Court divided 5-4 along conservative-liberal lines and struck down a compulsory collection of union fees provision. By the same new liberal norm, a case such as Williams-Yulee v. The Florida Bar (2015) (denying a claim of right) might be seen as a “pro” First Amendment case.

Phrased another way, one First Amendment “right” is being swapped out for another but in the same case. Of course, this may seem strange because one thinks of rights on one side and the government on the other. And remember: rights runs against the government. So how can there be any swapping since the government does not have rights? — it has only constitutionally authorized powers.

This riddle might be “solved” in two ways: (1) by the government siding with one conception of First Amendment rights (e.g., with labor unions in compulsory support cases), or (2) by a third party entering a suit to assert its own version of a First Amendment right (e.g., invoking an argument in line with Breyer’s dissent in McCutcheon). To be sure, such moves might, among other things, implicate Article III standing issues. There is also the peculiar specter of the government siding with one conception of First Amendment in order to defeat another. In the old world, the government could abridge a First Amendment right, whereas in the new world it “vindicates” a right (depending on which side of the constitutional divide one is on).

In all of this there is more at work than dethroning a once-recognized constitutional right (as in the case of the demise of economic due process). There is, I think, a move to both defeat certain tenets of First Amendment law (e.g., campaign finance) and to erect others (net neutrality). In the case of the latter, the goal is to develop new notions of First Amendment law (e.g., in the compulsory support of unions line of cases and in the fairness doctrine area).

The old paradigm: Liberals demanded the vindication of First Amendment claims while conservatives tendered reasons why societal interests should trump such claims.

The new paradigm: Conservatives demand the vindication of certain First Amendment claims while liberals tender reasons why societal interests should override such claims.

The result: Conflicting norms of First Amendment rights. In this new constitutional environment, the conflict-of-rights dilemma of the Religion Clauses (Establishment vs Free Exercise) is destined to become the rights-in-conflict dilemma of the Free Speech and Press Clauses.

imagesOf course, this remove-and-restructure constitutional mindset is still in its theoretical phase and has yet to garner any formal recognition by a majority of the current Court. But now that this cat is out of its conceptual bag, might it begin to influence the way lawyers litigate free expression First Amendment cases? (Something of that very thing has already occurred, though not in entirely explicit way, in an amicus brief filed on behalf of Norman Dorsen, Aryeh Neier, Burt Neuborne and John Shattuck (“Past leaders” of the ACLU) in the Williams-Yulee case.)

What are we to make of this new way of considering whether a First Amendment right has been upheld or not? How are we to gauge whether our rights are being vindicated or violated? Will First Amendment law begin to change, both jurisprudentially and operationally?

While you ponder such questions, step back and ask yourself one more question: Have we entered some postmodern maze in which we have lost our constitutional bearing . . . or we are struggling to find our way out in the hope of discovering a new one?


A sequel to this essay appears in the Boston University Law Review Annex symposium and is titled “The Liberal Divide & the Future of Free Speech” (commentary on Danielle Citron’s Hate Crimes in Cyberspace).


FAN 81 (First Amendment News) Parody Prevails, Copyright Challenge Fails — the Play Goes On

David Adjmi

David Adjmi

David Adjmi is an accomplished playwright. Three years ago one of his plays, 3C, was performed at the Rattlestick Playwrights Theater. The New York Times described it as a “darkly comic deconstruction of the 1970s sitcom Three’s Company.” But DLT Entertainment Ltd., (the sitcom’s copyright owner) didn’t appreciate the humor, so its lawyers sent out a  cease-and-desist letter. The claim was that Mr. Adjmi had borrowed too much. Though the play went on, the suit did too. The question was whether there was a First Amendment parody and fair use privilege to do what Adjmi did.

That question was answered recently by United States District Court Judge Loretta A. Preska who ruled that “despite the many similarities between the [play and the sitcom], 3C is clearly a transformative use” and thus can be performed, published, and licensed.

Bruce Johnson

Bruce Johnson

At first Mr. Adjmi was tempted to give in to DLT Entertainment Ltd’s demands because he lacked the money to stay in the legal fight. The plot then thickened: Patrick Healy, then theatre reporter for the New York Times, was incensed, so he “started a petition on Adjmi’s behalf, which was signed by many in the industry, including some fancy people, too, like Stephen Sondheim and Aaron Sorkin and Tony Kushner.”

Enter Bruce Johnson, a noted First Amendment lawyer at Davis Wright Tremaine. The turning point came when Mr. Johnson and his firm took on the case, pro bono. They won it. As Mr. Johnson told American Theatre“We took this on a pro bono basis because we care deeply about the theatre,” and felt that “meritless legal claims should not be used to block free speech.” As he saw it, “DLT was hoping that its greater financial resources would overmatch whatever legal help David [Adjmi] could find, if anyone.” That disturbed Johnson “because it was clearly intended to have an effect on David and his efforts to protect his free speech rights.”

In the words of the Bard, “all’s well that ends well.” (See below)

Performance & Panel Discussion ←

The Arts Integrity Initiative at The New School College of Performing Arts, School of Drama, will present the first public reading of David Adjmi’s 3C, following the work’s landmark legal victory. Directed by Jackson Gay, this is the first public performance of 3C following the landmark legal victory.

A panel discussion hosted by playwright and New School faculty member Jon Robin Baitz will include attorney Bruce Johnson and David Adjmi, speaking publically for the first time, about 3C’s journey since its world premiere in June of 2012 at Rattlestick Playwrights Theater.


WHERE: The New School Auditorium – 66 W. 12th Street New York City, New York


Abortion Buffer Zone Ordinance Invalidated Read More


FAN 80 (First Amendment News) Coming Soon: Philippa Strum’s Book on Whitney v. California

Those familiar with American legal history, including its free-speech history, know the name Philippa Strum. The senior scholar at the Wilson Center is the author of, among other books, Louis D. Brandeis: Justice for the People (1984) and When the Nazis Came to Skokie (1999). Her latest book comes out early next month and is entitled Speaking Freely: Whitney v. California and American Speech Law. The book is being published by the University Press of Kansas and is part of the Landmark Law Cases and American Society. Here is the publisher’s abstract of the book:

51N0zk7v72L._SX319_BO1,204,203,200_“Anita Whitney was a child of wealth and privilege who became a vocal leftist early in the twentieth century, supporting radical labor groups such as the Wobblies and helping to organize the Communist Labor Party. In 1919 she was arrested and charged with violating California’s recently passed laws banning any speech or activity intended to change the American political and economic systems. The story of the Supreme Court case that grew out of Whitney’s conviction, told in full in this book, is also the story of how Americans came to enjoy the most liberal speech laws in the world.”

“In clear and engaging language, noted legal scholar Philippa Strum traces the fateful interactions of Whitney, a descendant of Mayflower Pilgrims; Supreme Court Justice Louis D. Brandeis, a brilliant son of immigrants; the teeming immigrant neighborhoods and left wing labor politics of the early twentieth century; and the lessons some Harvard Law School professors took from World War I-era restrictions on speech. Though the Supreme Court upheld Whitney’s conviction, it included an opinion by Justice Brandeis — joined by Justice Oliver Wendell Holmes, Jr. — that led to a decisive change in the way the Court understood First Amendment free speech protections. Speaking Freely takes us into the discussions behind this dramatic change, as Holmes, Brandeis, Judge Learned Hand, and Harvard Law professors Zechariah Chafee and Felix Frankfurter debate the extent of the First Amendment and the important role of free speech in a democratic society. In Brandeis’s opinion, we see this debate distilled in a statement of the value of free speech and the harm that its suppression does to a democracy, along with reflections on the importance of freedom from government control for the founders and the drafters of the First Amendment.”

“Through Whitney v. California and its legacy, Speaking Freely shows how the American approach to speech, differing as it does that of every other country, reflects the nation’s unique history. Nothing less than a primer in the history of free speech rights in the US, the book offers a sobering and timely lesson as fear once more raises the specter of repression.”

Philippa Strum is arguably the leading Brandeis scholar of the last fifty years. Justice Brandeis’s opinion in Whitney v. California is arguably the most inspiring and enduring judicial account ever of the reasons for a strong free speech principle. It seems only natural that Philippa Strum should write the definitive book on Whitney v. California. And she has done just that, uncovering much new material about Anita Whitney and those who prosecuted and defended her. This fascinating book is truly worthy of Brandeis, who relished resourceful factual investigation, instructive analysis, and lucid writing. — Vincent Blasi

Other books in the Landmark Law Cases and American Society series dealing with free speech include:

  1. Whitney Strub, Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression (2013)
  2. Max Lender, Gitlow v. New York: Every Idea an Incitement (2012)
  3. Kermit Hall & Melvin Urofsky, New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press (2011)
  4. Robert Justin Goldstein, Flag Burning and Free Speech: The Case of Texas v. Johnson (2000)
  5. John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (1997)

Guns on Campus — Free Speech Under Fire? 

Justice Scalia in District of Columbia v. Heller: “[The Court’s decision] “should not be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.

Oregon is one of the seven states that now have provisions allowing the carrying of concealed weapons on public post-secondary campuses. (See Auyero commentary below)

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Guns-and-Free-Speech Tyler Kingkade, “Texas Professors Warn Allowing Guns In Class Will Inhibit Free Speech,” Huffington Post, Oct. 5, 2015

Greg Piper, “‘Ad hominem’ attacks on gun-rights supporters convince University of Texas student to back concealed carry,” The College Fix, Oct. 6, 2015

Mike Spies, “Texas Professor Warns That Guns in Classrooms Could Dumb Down Provocative Lessons,” The Trace, Oct. 6, 2015

Anthony Hennen, “UT chancellor: Removing gun-free zones will “inhibit our freedom of speech,” Red Alert Politics, Oct. 5, 2015

→ Javier Auyero, “What the ‘campus carry’ law means for higher education,” Fortune, Oct. 5, 2015

Jim Vertuno, “University of Texas holds forum on concealed guns on campus,” Washington Times, Sept. 30, 2015

Jennifer Sinor, “Guns on Campus Have Already Curtailed Free Speech,” The Chronicle of Higher Education, Oct. 27, 2014

Court sustains First Amendment claim in occupational licensing case Read More


Joel Gora, The Roberts Court & the Future of Free Speech

Below is a post by a guest blogger, Professor Joel M. Gora. He is on the faculty of the Brooklyn Law School where he teaches constitutional law and related courses and has written extensively on First Amendment issues. He served as a lawyer for the national ACLU for nearly a decade and worked on dozens of United States Supreme Court cases, including many landmark rulings (see e.g., herehereherehere, and here). Chief among them was Buckley v. Valeo (1976). He worked on behalf of the ACLU on most  of the important campaign finance cases to come before the Court. He also served for more than 25 years on the board of directors of the New York Civil Liberties Union and was one of its general counsel. The views expressed here are his own. — rklc

* * * *

The new Supreme Court Term that begins today marks the tenth anniversary of “the Roberts Court,” which reached full complement in January 2006. That was when Associate Justice Samuel Alito joined the Court, which Chief Justice John G. Roberts had been appointed to lead a few months earlier. The resulting coalition of a five-Justice “conservative majority” has had significant impact on the Court’s jurisprudence in a number of areas, and this has been especially evident in its rulings on the crucial First Amendment right of freedom of speech. In my view, “the Roberts Court” may well be the most speech-protective Court in a generation – if not in the Nation’s history – reaffirming and expanding extraordinary protection for free speech in a variety of settings. In the process, the Court has rebuffed numerous attempts by government and its allies to restrict established free speech protections or create new free speech limitations.

Professor Joel Gora

Professor Joel Gora

First, in a series of cases, the most well-known of which is Citizens United v. Federal Election Commission (2010), the Court has been insistent that protecting political speech is at the heart of the First Amendment’s purposes in a democracy and that limits on political spending are limits on political speech and can rarely be justified. The Court’s theory, echoing earlier rulings, is that government restrictions on how much can be spent to speak about politics and government and what individuals or groups can do the spending and speaking are fundamentally anathema to the essence of political freedom of speech and association.

In these campaign finance cases, the Court has also reaffirmed a theme that transcends politics: that another core purpose of the First Amendment is to guarantee that the people, not the government, get to determine what they want to say and how they want to say it. This liberty-affirming concept, which celebrates the autonomy of each person and group and condemns censorship of thought and speech by government, has application well beyond the political realm and guarantees the strongest protection to free speech in a number of settings, including protection for artistic, corporate and commercial speech as well. In all of these areas the Roberts Court has insisted that the First Amendment presumption against government censorship is but another recognition of individual and group freedom.

Applying these principles, the Court has steadfastly refused to declare speech that many deemed socially worthless to be beyond the pale of the First Amendment’s protection. In rejecting government efforts to criminalize depictions of animal cruelty, regulate the sale of violent video games to young people, punish those who lie about receiving military honors, unduly regulate those who protest near abortion clinics, and permit damages to the targets of even hateful and hurtful homophobic slurs and insults, the Court has reaffirmed that it is the individual, not the government, who must judge the worth of such speech. In those cases the Court emphatically refused to expand the very short list of “non-speech” exceptions from First Amendment protection, such as, obscenity and fighting words.

To be sure the Roberts Court has not invariably ruled in favor of free speech claims. It has allowed government, in some circumstances, to censor student speech, government employee speech, certain forms of campaign funding associated with elections to judicial office, and speech supporting terrorist organizations. It has also given government some leeway to control speech on or utilizing government’s own property. But these few exceptions help prove the rule that, outside these few instances, the Court has insisted on preserving the vital individual and societal First Amendment values served by affording the most rigorous protection to free speech.  The same regard for the individual can also found in a number of significant cases where the Court has protected religious freedom against the demands of government, including safeguarding the rights of a church to determine whom to hire as a teacher, a family-held company to resist providing health care insurance against its religious convictions, a Muslim prisoner to wear a beard for religious reasons despite prison security concerns, and an employee to wear a religious head scarf despite a company’s dress code appearance rules.

What does the future hold for free speech in the Roberts Court? The Court’s free speech docket for the upcoming Term is a modest one at this point, though involving an important case about whether non-union public employees can be compelled to pay the union for representing them against their will. Also, the court has just agreed to hear a government employee free speech case. So, time will tell whether the Roberts Court will continue to be the surprisingly powerful voice for free speech that it has become.

Dissenting Justices and prominent legal scholars have suggested that the Roberts Court has gone too far in overprotecting freedom of speech and not properly taking account of, and balancing the needs of, government which have been advanced to justify the particular restrictions on speech at issue. Other critics write off the Court’s free speech jurisprudence as simple right-wing favoritism of the rich and the powerful, insisting instead that the First Amendment should mainly protect just the deserving “lonely pamphleteer” or “soapbox orator” of an earlier era.

Ironically, liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today. The current Court, however, has strongly maintained that the First Amendment must be available to every person or group who would seek to exercise its rights and has refused to means-test free speech protection. In taking that position, the Roberts Court is relying on free speech themes sounded in earlier, more “liberal” eras of the Court and building upon and strengthening the foundational pillars of free speech erected by the great Justices like Holmes, Brandeis, Black, Douglas and Brennan.

And, that is all to the good for one final, troubling, albeit ironic reason.  In a time when the Supreme Court seems to be affording more free speech in its rulings than any predecessor Court has done, in everyday life, these are trying times for free speech. Censorship seems to reign, both at home and abroad, in what sometimes seems to be a war on free speech. Whether it be the instantaneous condemnation and punishment of fraternity members for singing racially offensive lyrics at a social event, the brazen murder of journalists for producing anti-Muslim cartoons and commentary, or the cancelling of celebrity contracts for making offensive remarks or expressing unpopular views, free speech in everyday life seems often under attack and in jeopardy.

Enhanced by technology, and “going viral,” one slip of the tongue, caught on camera or recorder, can ruin an individual’s career or life prospects. Technology has also facilitated unprecedented surveillance of citizens, which can create a new form of chilling effect to suppress criticism of government. And, too often, our campuses, rather than being sanctuaries of free speech, thought and inquiry, are venues for suppression and censorship of “hurtful” ideas.

In the face of these various suppressions of speech, it is imperative that at least where the law is concerned the Supreme Court continues to make it quite clear that free speech must be the rule and government censorship the rare exception.