Tagged: Supreme Court

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FAN 112 (First Amendment News) Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet

Over at Balkanization, Harvard Law Professor Mark Tushnet has some provocative things to say about the rule of law and the First Amendment. His post came in response to a New York Times story by Adam Liptak entitled “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.

Here is what Professor Tushnet wrote:

Professor Mark Tushnet

Professor Mark Tushnet

“I feel compelled to note that — except for blatantly strategic reasons that I actually wouldn’t find compelling — I almost certainly wouldn’t endorse the view that Trump shows contempt for the rule of law and the First Amendment — not because I agree with his views, of course, but because ‘the rule of law’ and ‘the First Amendment’ are almost entirely without content, so that I don’t know how someone could show contempt to ‘them’ — if there’s no there there, I can’t see how you could be contemptuous of ‘it.'”

Then, by way of a parenthetical comment, he added:

“Of course the claim that there’s no there there is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable.”

Over at The Volokh Conspiracy, George Mason University Professor David Bernstein took exception: “I think that Donald Trump does show contempt for the rule of law and the First Amendment, which I believe have plenty of ‘content.’ In Trump’s case, I don’t think it’s a rejection of the concept of the rule of law as much as complete, willful ignorance of the principles underlying our legal system.”

Invitation: Given Professor Tushnet’s comment that his is a “fairly complicated argument not worth developing here,” I invite him to say a few more words about what he meant, and I will happily post them.

Elementary School Bans Trump Cap

Logan Autry

Logan Autry

Powers-Ginsburg Elementary School has barred Logan Autry, a nine-year student, from wearing a Donald Trump cap to school. As reported by  Sontaya Rose for ABC News, young Autry said: “The vice principal came up to me and told me to take my hat off because it brings negative attention from other students. And I said no a few times and then the principal told me again and I still said no and refused.”

“For three days straight,” wrote Rose, “the third grader wore the hat to class. But each day, more and more classmates began confronting him at recess. ‘I still want to keep my hat. It’s not the hat that draws attention, it’s just my personality that the other children do not like,’ said Autry.”

“Autry recently moved to Fresno from the foothills, he loves politics and American history. ‘He knows more than I do. He knows more about this election than I know, it’s kind of embarrassing. You know, like are you smarter than a third grader kinda thing. But he is just very adamant about his beliefs and his rights. He wants to be a politician that’s his goal,’ said Angela Hoffknecht, Logan’s guardian. . . .”

FIRE Podcast Interviews with Glenn Greenwald & David Baugh

Over at FIRE, the “So to Speak” podcast interviews continue. The first interview in the series was with Glenn Greenwald. Recall, Greenwald is best known as one of the journalists who coordinated the 2013 National Security Agency revelations made by whistleblower Edward Snowden.

The second podcast interview was with David Baugh, who was the ACLU lawyer who represented the petitioner in  Virginia v. Black(2003) — the cross-burning case.

Nico Perrino, Director of Communications for FIRE, conducted the interviews.

New Book on Free Speech & “Conservative Libertarianism”  Read More

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FAN 111 (First Amendment News) Flying Dog Brewery Launches First Amendment Society

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

Free beer was being served as the audience gathered yesterday for a press conference at the National Press Club in Washington, D.C. to hear Jim Caruso (CEO of Flying Dog Brewery), Alan Gura (a DC-based constitutional law litigator), and Erin Weston (senior Director of Communications for Flying Dog). The three were there to discuss their First Amendment victory in Flying Dog Brewery v. Michigan Control Commission (6th Cir., 2015). More importantly, they were there to formally launch a new free-speech initiative. Ms. Weston will oversee the initiative.

The “First Amendment Society” is a non-profit initiative started by Flying Dog. The seed money for the campaign came from the damages award the brewery received from its victory in the Sixth Circuit.

Dean Lucy Dalglish

Dean Lucy Dalglish

One component of the initiative will be a First Amendment scholarship program done in conjunction with the  Philip Merrill College of Journalism at the University of Maryland, of which Lucy Dalglish (former executive director of the Reporters Committee for Freedom of the Press) is dean. Dalglish was present at yesterday’s press conference

Another component of the initiative will involve a a partnership with a public library. Staring next week, the Frederick County Public Library will host a series of lectures focusing on banned books and the First Amendment. The first three of those events will be held at 6:00 p.m. on the following dates:

  1. June 8Garrett Epps will discuss Whitman’s Leaves of Grass
  2. July 13: Michelle Markey Butler  will discuss Harry Potter and the Sorcerer’s Stone
  3. August 10: Ronald Collins, “The Poem that Howled Against Censorship: The Story of the Attempt to Ban a Book of Poems”
L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

Moved to action by the Michigan Liquor Control Commission’s attempt to ban the company’s “Raging Bitch” beer from being sold within the state, Jim Caruso tagged the experience as “an outrageous violation of our First Amendment rights.” It was that experience that prompted him to launch the First Amendment Society. In the course of the press conference, Caruso was emphatic that “this is not a marketing tactic.” Alan Gura, the lawyer who successfully argued the case, echoed that point as he discussed the merits of the case and why it was important to litigate it.

Some of those present at the press conference were Robert Corn-Revere, Walter Olson, Nico PerrinoIlya Shapiro, and Bryan Thomas Hissing, Community Services Coordinator for the Frederick County Public Library

New Book on Child Pornography Law Read More

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FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

Civil liberties without Steve Shapiro is like the Rolling Stones without Jagger. — Kathleen Sullivan

Steve Shapiro

          Steven Shapiro

He is a giant in his world, the world of civil liberties. For some two decades he has been the man at the helm of defending freedom on various fronts ranging from free speech to NSA surveillance and more, much more. His journey began 40 years ago as a staff counsel to the New York Civil Liberties Union.

He is Steven R. Shapiro.

Sometime this fall Shapiro will step down as the Legal Director of the American Civil Liberties Union. He has long been the one ultimately responsible for the ACLU’s entire legal program. Equally significant, Shapiro has been most closely involved with the ACLU’s Supreme Court docket. Ever since 1987, he helped to shape, edit, and occasionally write every ACLU brief to the Supreme Court.

  • Law Clerk (1975-1976 ) Judge J. Edward Lumbard, Court of Appeals, Second Circuit
  • J.D. (1975), Harvard Law School, magna cum laude.
  • B.A. (1972), Columbia College

Since 1995 Shapiro has served as an adjunct professor at Columbia Law School, where he has taught “Civil Liberties & the Response to Terrorism,” and “Free Speech and the Internet.”

 Shapiro is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Steven Shapiro, “The Roberts Court and the Future of Civil Liberties,” Houston Law Center, April 20, 2012

Natalie Singer, “Freedom Fighter, A conversation with Steven R. Shapiro ’75

SCOTUSblog on Camera: Steven R. Shapiro (complete six-part series here)

The Measure of the Man: What Others Say

I invited a few of those who know Steve Shapiro and are familiar with his work to offer a few comments. Before proceeding to their full comments, I selected a set of words drawn from them that capture the measure of the man: Here are those seven words:

“thoughtful” 

“principled”

 “unflappable”

 “effective” 

“remarkable” 

“honest”

“extraordinary”

Nadine Strossen: “Steve Shapiro has been a supremely thoughtful, lucid, persuasive advocate of First Amendment rights and other civil liberties, both orally and in writing. Whether he is serving as Counsel of Record on a Supreme Court brief or giving a sound-bite for the national media, he always presents even the most complex, controversial positions clearly, colorfully, and compellingly.”

EVAN E. PARKER/ THE TIMES Steven Shapiro, legal director of the American Civil Liberties Union, speaks Thursday at Valparaiso University's School of Law about the legal aspects of the United States Patriot Act.

   [credit: Evan E. Parker/ The Times]

Robert Corn-Revere: “Through his long career in defending civil liberties, and First Amendment rights in particular, Steve Shapiro demonstrated that protecting individual rights often requires championing the right to express ideas you abhor, but that doing so is necessary to protect basic freedoms. For those of us who had the privilege of working with him, his principled advocacy will be greatly missed.”

Burt Neuborne: “Steve Shapiro set the standard for all once and future ACLU Legal Directors. I know because I didn’t reach his standard. Steve has a precise and uncannily quick analytic mind that breaks complex fact patterns down into controllable issues, together with a keen strategic sense that accurately separates a good academic argument from an argument having a chance in the real world. Couple Steve’s extraordinary legal ability with his careful approach to administration, unflappable good humor, patience, and deeply principled commitment to the ACLU, and you have the key to his enormous success. He leaves office with the respect and affection of hundreds of lawyers whose work he aided, and with the knowledge that he performed one of the nation’s most important legal tasks with brilliance and humanity.”

Erwin Chemerinsky: “Steve Shapiro has done a truly spectacular job as Legal Director of the ACLU. The ACLU legal staff has grown tremendously and likewise benefitted greatly under his leadership and has made a huge difference in so many areas of law. He has been especially effective in directing the ACLU’s presence in the Supreme Court.”

Kathleen Sullivan: “Over his remarkable tenure Steve’s energy, intellect, and suppleness enabled the ACLU to navigate profound changes in the landscape of security, privacy, and freedom. It has always been a joy to work with him.”

Paul M. Smith: “It has been my privilege and pleasure to work with Steve Shapiro on a large number of projects over the years. For a quarter century, he has been on the job at the ACLU displaying a breadth of knowledge and a depth of wisdom that has been extraordinary.”

Arthur Spitzer: “At a recent ACLU Nationwide Staff Conference where Steve Shapiro’s forthcoming retirement was announced, the event planners handed out cardboard fans that said, ‘We’re all fans of Steve.’ The humor may not have been brilliantly original, but I think no one disagreed with the sentiment. Steve is a terrific lawyer, often seeing the deep problems in a case before anyone else and then seeing the way around them. But I think his even greater value to the ACLU has been his ability to be an honest broker among all the competing viewpoints within the ACLU. As far as I’ve been able to perceive (although from afar, at the local affiliate in DC), everyone feels that Steve understands and appreciates his or her concerns, weighs them fairly, and takes them into account, even if not ultimately agreeing. That will be a hard act to follow.”

UnknownOne Measure of His Work: Free Expression Cases

Below is a list of all the free speech cases (not all First Amendment cases) in the Supreme Court where the ACLU filed or signed onto a brief in the last ten terms. The direct cases are marked by an asterisk; all the others are amicus briefs.

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:

____________

Court Denies Review in Sign Case Read More

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FAN 108 (First Amendment News) Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play

It is rare for the Senate to reject a Supreme Court nominee — the last time it did so was in 1987, when it voted against Robert H. Bork after an ugly political battle. . . . No president in at least the past century has had a Supreme Court nominee go unconfirmed on the grounds that it was an election year, according to ScotusblogEmmarie Huetteman

While the war of Citizens United and campaign financing rages on, Democrat and Republican groups are busy tapping into their financial war chests to contest key Senate races, which could determine the makeup of the Senate and the confirmation process as it applies to nominees to the Supreme Court . . . and that could shape the future of the First Amendment.

Writing in Politico, Burgess Evertt pointed out that “Democrats are getting badly outspent by their conservative rivals in the war over Merrick Garland’s confirmation, suggesting that President Barack Obama’s closest allies in the Supreme Court battle have more bark than bite.”

“The Constitutional Responsibility Project — which is taking the lead in the Democratic PR push over the court — has spent about $150,000 on two ads knocking Sens. Rob Portman of Ohio and Pat Toomey of Pennsylvania for stonewalling Garland’s nomination, according to two media tracking sources. That’s a pittance compared to the conservative Judicial Crisis Network, which has already spent $4.5 million to bolster vulnerable Republicans and attack moderate Democrats for urging action on Garland. . . .”

Everett also noted that “other groups aligned with the left are making seven-figure ad buys: End Citizens United hit GOP senators in New Hampshire, Iowa and Missouri with $1.2 million in ads, and Senate Majority PAC spent $1 million on Supreme Court ads targeting GOP Sen. Kelly Ayotte in New Hampshire. Planned Parenthood has spent $400,000 to animate voters on the Garland issue, and a number of smaller digital ad buys, led by Majority Forward, are hitting Republicans on the matter. . . .”

Meanwhile, back on the Hill, Chief Judge Merrick Garland is making the rounds (limited as they are) to any senator who will agree to see him (46 to date, 14 of them Republicans).

∇ ∇ ∇ 

Below is a list of the Court’s 5-4 First Amendment free expression rulings in which Justice Antonin Scalia was in the majority:

  1. Garcetti v. Ceballos (2006)
  2. E.C. v. Wisconsin Right to Life, Inc. (2007)
  3. Morse et al. v. Frederick (2007)
  4. Davis v. Federal Election Commission (2008)
  5. Citizens United v. Federal Election Commission (2010)
  6. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
  7. Harris v. Quinn (2014)
  8. McCutcheon v. Federal Election Commission (2014)

Bravin On Garland’s Nomination Questionnaire

Jess Bravin (credit: NYT)

Jess Bravin (credit: NYT)

Wall Street Journal Supreme Court correspondent Jess Bravin just posted a piece on the 141-page questionnaire Chief Judge Merrick Garland submitted to the Senate Judiciary Committee yesterday. The questionnaire, he wrote, “offers a sliver of Judge Garland’s views by asking him to describe his 10 most significant judicial opinions, as well as the 10 most significant matters he handled as a trial or appellate attorney. . . .  At the top of his list of significant opinions Judge Garland listed a 2015 opinion that expanded the definition of the press beyond conventional news organizations to account for new, Internet-fueled forms of media.”

“Another FOIA case,” Bravin added, “made Judge Garland’s list: his 2013 opinion requiring the Central Intelligence Agency to respond to a request related to drone strikes filed by the American Civil Liberties Union. The CIA had refused to acknowledge whether it held any such records; Judge Garland found such a position untenable, as the president had publicly acknowledged the drone program.”

FAN 101.2:  Judge Garland on the First Amendment: Opinions & Votes

New Study: First Amendment Offers Scant Protection for Professors Read More

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FAN 107.2 (First Amendment Law) Hasen on the Next Big Campaign Finance Case

James Bopp, Jr.

James Bopp, Jr.

The case is Republican Party of Louisiana, et al. v. FECAs noted on the Federal Election Commission’s website: “On August 3, 2015, the Republican Party of Louisiana, the Jefferson Parish Republican Parish Executive Committee and the Orleans Parish Republican Executive Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of portions of the Federal Election Campaign Act that specify how state and local parties must finance and disclose certain ‘federal election activity’ that they plan to engage in, including fundraising costs for such activity. They argue that the provisions are unconstitutional under the First Amendment because they burden the plaintifffs’ ‘core political speech and association’ and that there is no sufficiently ‘cognizable’ governmental interest justifying the challenged provisions.”

Prof. Richard Hasen

Prof. Richard Hasen

The case is now before a three-judge court with James Bopp arguing on behalf of the Republican Party of Louisiana. Recall that Mr. Bopp was the one who played a major role in orchestrating the litigation around such campaign finance cases as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014).

As Professor Richard Hasen sees it, the Republican Party of Louisiana case could prove to be a major moment in the ongoing battle over campaign finance laws and the First Amendment. Writing in The Atlantic, Professor Hasen notes:

“The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.”

“If the Supreme Court still has a vacancy when the soft-money case arrives,” adds Hasen, “that means the lower-court ruling could stand on a 4-4 split. But even if that happens, there will be other cases waiting in the wings. Eventually, when the Court has its full complement of justices, it will face a fundamental decision: Should it embrace the vision of Justice Scalia, in which the Court holds that the First Amendment does not allow meaningful limits on money in politics?”

Related Documents

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FAN 107 (First Amendment News) FTC’s Power to curb misleading ads remains intact

After a lengthy hearing (involving 14 expert witnesses and nearly 2000 exhibits), an administrative law judge (ALJ) concluded that petitioners had violated the FTC Act. . . . On de novo review, the Commission found that petitioners had violated the FTC Act by using misleading, unsubstantiated ads to market their products. . . . .[T]he FTC factual findings at issue in this case are entitled to judicial deference under the substantial-evidence standard. Government brief in POM Wonderful

This past Monday the Court denied cert in POM Wonderful, LLC v. FTCa commercial speech case. It was the 14th First Amendment free-speech case the Justices denied review in this Term (see below). The issue in the case was whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo.

The U.S. Court of Appeals for the D.C. circuit ruled in favor of the Federal Trade Commission in an opinion by Judge Sri Srinivasan joined in by Chief Judge Merrick Garland and Senior Circuit Judge Douglas H. Ginsburg.

→ Tom Goldstein — who successfully Sorrell v. IMS Health, Inc. (2011) — was the counsel of record on the cert petition filed on behalf of POM Wonderful. In his brief Mr. Goldtstein argued:

The Federal Trade Commission (FTC) deemed several of petitioners’ advertisements unprotected by the First Amendment and banned them on the theory that their truthful content nonetheless implied a false or misleading message to a “significant minority” of consumers. Petitioners challenged that ban under the First Amendment. The Court of Appeals upheld the ban in its entirety because—applying only generic principles of administrative law—it gave great deference to the FTC’s determination that all of the challenged ads implied the alleged false or misleading messages and for that reason received no First Amendment protection.

The Cato Institute filed an amicus brief supporting the Petitioner.  In it, Cato’s lawyers argued:

This case raises the issue of whether the U.S. Courts of Appeals should defer broadly to Federal Trade Commission (“FTC”) adjudicative factual and legal findings when the agency’s order restrains commercial speech. The Court has not addressed that issue in 50 years. See F.T.C. v. Colgate-Palmolive Co. (1965). Since 1965, the deference accorded the FTC’s factual and legal findings in every administrative deceptive advertising case has effec- tively transformed the agency into a court of last resort despite the fact that all FTC deceptive adver- tising decisions necessarily involve limitations on prospective commercial speech and, thus, raise First Amendment issues, and despite the fact that in administrative cases the FTC not only initiates prose- cutions but also serves as the ultimate judge, an inherent conflict of interest.

All of those claims fell to the wayside when the Court denied cert. in the case earlier this week. Instead, the Court let stand the position argued for by the government in its reply brief in POM: “the court of appeals’ holding that substantial-evidence review applies in this context is correct and does not conflict with any decision of this Court or of another circuit or a state court of last resort.”

That said, the FTC’s powers to regulate misleading ads remained intact and the Commercial Speech doctrine likewise remained as it is.

By bringing [this] case [up for review] POM [put] all of its cards on the table. But other food and supplement advertisers will have to live with the results.Bruce Silverglade (counsel for Olsson Frank Weeda Terman Matz)

Backpage.com Contests Senate Subcommittee Subpoena  Read More

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

Michael F. Williams, lead counsel for Sheriff Dart)

Michael F. Williams (lead counsel for Sheriff Dart)

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

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

Back page appealed and prevailed.

Sheriff Thomas Dart

Sheriff Thomas Dart

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

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

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

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

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

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

 The Cert. Petition

 Counsel for Sheriff Dart advance two main arguments:

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

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

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

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

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

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

Officer Jeffrey Heffernan (Courtesy of Jeffrey Heffernan)

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

The Roberts Court & Government Employee Speech 

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

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

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

The Significance of a Scalia Vote?

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

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

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

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

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

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

The Significance of Government Motive & the Insignificance of Individual Intention

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

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

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

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

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

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

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

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

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

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

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

* * Additional Commentary * * 

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

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

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

Are paintings protected by the First Amendment?

What about music?

And photography and films?

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

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

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

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

Jackson Pollock (The Art Institute of Chicago)

Jackson Pollock (The Art Institute of Chicago)

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

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

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

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

 Related Literature  

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

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

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

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

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

Profesor Geoffrey Stone

Profesor Geoffrey Stone

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

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

* * * * 

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

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

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

Samuel Roth

Samuel Roth

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

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

Recipients of the 2016 Jefferson Muzzle Awards

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How an Anarchist Changed Oliver Wendell Holmes’s Future

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Seattle, WA: Last evening I joined David Skover to see (yet again) Stephen Sondheim‘s dark musical, Assassins. Afterwards, I turned to David and said: “Well, not all of those assassinations proved for the worst. Holmes, after all, owed a debt to the anarchist who murdered President McKinley.” So here is a page from that story, the true one that is.  

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Leon Czolgosz

Leon Czolgosz

September 6, 1901 is one of the most important dates in American constitutional history, though few think of it as such. On that day Leon Czolgosz attempted to assassinate President William McKinley at the Pan-American Exposition in Buffalo, New York. Though the President would live several more days, the two shots the anarchist fired ultimately killed McKinley (he died on September 14th) and thereby put in motion a string of events that led to Oliver Wendell Holmes, Jr. becoming the fifty-eighth Justice on the Supreme Court.

But for the death of the President, the seat to be vacated by Justice Horace Gray would not have gone to then Chief Justice Holmes of the Massachusetts Supreme Judicial Court. No — President McKinley had other plans. Here’s what those plans were:

As the summer of 1901 wound down, it became apparent to McKinley and others that Justice Gray was ill and was likely to retire soon. So the President turned to his friend John Davis Long, then Secretary of the Navy, for advice. Though Long had nominated Holmes to the Massachusetts bench when he was governor, he did not recommend him for the U.S. Supreme Court. Instead, Long urged the president to select Alfred Hemenway, his law partner.  And Hemenway was prepared to accept the position if and when offered.

As it turned out, however, Horace’s delay in retiring combined with McKinley’s assassination changed everything. Thereafter, Henry Cabot Lodge, a U.S. senator from Massachusetts and one of Theodore Roosevelt’s close friends, recommend Holmes for Gray’s seat when the ailing Justice stepped down in July 1902. Roosevelt acted on Lodge’s suggestion and nominated Holmes. By December the Senate confirmed him, unanimously.

As ironic as it was, Oliver Wendell Holmes owed his justiceship to a crazed anarchist.