Tagged: Supreme Court

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FAN 91 (First Amendment News) 2015: The Year in Review, including “the best of”

This is the 50th FAN post for this year. The others are listed below by month. Also below are some highlights of the past year along with a few “best ofs” of 2015:

Supreme Court: The Court decided four First Amendment free speech cases:

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

The biggest surprise was the Chief Justice’s vote in William-Yulee followed by Justice Thomas’ vote in Walker.  Speaking of Justice Thomas, his majority opinion in Reed is likely to be the most important free speech case of the 2014-2015 Term.

Biggest First Amendment issue of 2015: Campus free-speech controversy

RetirementsLaura W. Murphy, the ACLU’s Washington legislative director, retired as did Dave Fidanque of the ACLU of Oregon.

Deaths: We had our losses in 2015: Al Bendich, the ACLU lawyer who represented both Lenny Bruce and Lawrence Ferlinghetti died as did Herald Price Fahringer, a noted criminal defense lawyer who did much to defend the cause of free speech.

Tweeting Free Speech: The Volokh Conspiracy went over to the Twitter side in 2015: @VolokhSpeech

MonumentalMobile Monument to the First Amendment (Thomas Jefferson Center)

The First Amendment & The Best of 2015

Best Supreme Court opinion: Reed v. Town of Gilbert

→ Best Supreme cert. petition: Paul M. Smith & Alonzo Wickers, IV (see here)

Best Supreme Court amicus brief: Ilya Shapiro & Robert Corn Revere (see here)

 Best lower court opinions: In re Simon Shiao Tam (Ct. App. Fed. Cir.) and Backpage.com v. Dart (7th Cir.)

Best state high court opinion: City of Keene v. Cleaveland, et al (N.H.)

Best First Amendment champions: Megan Kelly and Tim Tai

 Best group defending First Amendment rights: FIRE

→ Best report: “After-Action Assessment of the Police Response to the August 2014 Demonstrations in Ferguson, Missouri

 Best speech: Floyd Abrams, “Liberty is Liberty

Best newspaper article: Adam Liptak, “Court’s Free-Speech Expansion Has Far-Reaching Consequences,” New York Times

 Best interview: Bill Kristol’s interview with Justice Samuel Alito

 Best book: Catherine Ross, Lessons in Censorship: How Schools & Courts Subvert Students First Amendment Rights (see review here)

Best law review article: Eugene Volokh, “Gruesome Speech,” Cornell Law Review 

→ Best commentary: Amanda Shanor & Robert Post, “Adam Smith’s First Amendment,” Harvard Law Review Forum

 Best op-ed: Geoffrey Stone, “ISIS, Fear, and the Freedom of Speech,” Huffington Post (see here also)

→ FAN Posts for 2015 ←  Read More

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FAN 90 (First Amendment News) Law Professors Urge Justices to Honor Stare Decisis in Union 1-A case

Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. — John Roberts (Sept.13, 2005)

Andrew Pincus

Andrew Pincus

“A review of this Court’s decisions over the last 75 years—from 1940 through 2015— reveals that the Court has expressly overruled only ninety-one constitutional precedents, or slightly more than one case per Term. And when the Court does overrule a precedent, it typically—in 57 percent of the cases—acts unanimously or nearly-unanimously, with two or fewer Justices in dissent. In only twenty-one cases (23 percent) did a bare majority of the Court overrule a constitutional precedent.”

Thus did Andrew Pincus argue in an amicus brief he filed in Friedrichs v. California Teachers Association, et al.The brief was submitted on behalf of  four constitutional scholars in support of the Respondents. The professors are:

  1. Walter E. Dellinger III, Douglas B. Maggs Professor Emeritus of Law, Duke Law School
  2. Michael H. Gottesman, Professor of Law, Georgetown University Law Center
  3. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law, and
  4. David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School.
Professor David Strauss

Professor David Strauss

In urging the Court not to overrule the unanimous judgment in Abood v. Detroit Board of Education (1977), Mr. Pincus and the law professors offer five reasons to support the Court’s invocation of stare decisis: 

  1. First, “overruling Abood will significantly disrupt settled legal rules in related areas. . . .Because the legal principle underlying Pickering and Abood is essentially identical, overruling Abood would undermine the more relaxed First Amendment standards governing government regulation of employee speech applied in Pickering and its progeny. . . . Overruling Abood . . . would lead inevitably to significantly greater limitations on government regulation of employee speech in the workplace.”
  2. “Second, Abood is a forty year-old precedent decided unanimously and reaffirmed multiple times by a unanimous Court. It has been applied consistently in the government employee context and relied upon by the Court to resolve First Amendment questions in related contexts involving government restrictions on associational interests.”
  3. “Third, Abood has created significant reliance interests. Twenty-three States and the District of Columbia have enacted statutes in reliance on this Court’s decision—and not just those statutes, but these States’ entire collective bargaining regime, would have to be revised if Abood were overruled.”
  4. “Fourth, no changes in relevant facts or in society or in legal principles support overruling Abood. The decision’s basic premise—that the government’s vital interest in structuring its workforce permits gov- ernment as an employer to take actions that would be unconstitutional in other contexts—has been con- sistently reaffirmed by this Court in a variety of contexts,” and
  5. “Fifth, the Abood standard is workable, as the de cisions of this Court and the lower courts make clear.”

Additionally, they argue that

overruling Abood would likely trigger an avalanche of lawsuits against government employers and unions seeking agency fee refunds. That has already happened in the wake of this Court’s decision in Harris: plaintiffs have filed class actions in a number of states, including New York, Oregon, and Washington. One suit seeks the return of over $20 million in agency-shop fees paid by childcare workers.

Will such arguments stay the reversing hand of the same Roberts Court that set aside stare decisis in cases such as Citizens United v. FEC (2010), McDonald v. Chicago (2010), Gonzales v. Carhart (2007), and Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007)? In all of those cases, among others, existing precedents were overruled by a bare majority of the Court.

→ Even if the Court should decline to formally overrule Abood, might it not do so functionally, by way of “stealth overruling“? After all, that tactic has been to such good use in the Miranda line of cases that even Chief Justice William Rehnquist (a longtime Miranda critic) declined to overrule the landmark Warren Court precedent when he had the chance to do so.

 The other Counsel for the Amici are: Eugene Fidell (Yale Law School Supreme Court Clinic), Charles Rothfeld, Michael Kimberly, and Paul Hughes (all of Mayer Brown).

→ See also FAN 28 (First Amendment News) — “The Demise of Stare Decisis?” (Aug. 20, 2014)

[ht: Tony Mauro]

Court Strikes Down Trademark Law on First Amendment Grounds Read More

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FAN 89 (First Amendment News) Corn-Revere Brings First Amendment Challenge Against “Stop Advertising Victims of Exploitation” Act

Fresh from his victory in Backpage.com v. Dart (7th Cir., Nov. 30, 2015), noted First Amendment lawyer Robert Corn-Revere recently filed a complaint in the U.S. District Court for the District of Columbia in the case of Backpage.com v. Lynch. The complaint for declaratory and injunctive relief alleges:

  1. “This is an action challenging the constitutionality of the “Stop Advertising Victims of Exploitation” Act (the “SAVE Act”), which amended 18 U.S.C. § 1591, and was enacted as part of Public Law 114-22 on May 29, 2015. The Act added the term “advertises” among the predicate acts for criminal sex trafficking in Section 1591, punishable by prison terms ranging from ten years to life.”
  2. “Statements of Congressional sponsors and others in support of the SAVE Act and prior bills that led to the Act emphasized their intent to target the classified advertising website Backpage.com. Members of Congress and others have assailed Backpage.com for many years, despite the website’s extensive efforts to prevent, screen and block improper ads from users. Three states enacted criminal statutes to censor adult ads on Backpage.com, but  federal courts struck down all three laws, holding that the laws would have chilled First Amendment protected speech, were unconstitutionally vague and overbroad, lacked sufficient scienter requirements, and could not withstand strict scrutiny.”
  3. “Provisions of the SAVE Act targeting websites and others that publish or disseminate speech are also unconstitutionally vague, overbroad and infringe First Amendment rights for similar reasons. . . .”
  4. “[I]f the SAVE Act were interpreted to permit criminal liability if a website receives an allegation that a post concerns sex trafficking, this would create a notice- and-takedown regime that would impermissibly chill speech. Contrary to statements of some of the SAVE Act’s Congressional supporters, criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking. Given the enormous volume of third-party content they receive and disseminate every day, websites cannot possibly review every post to guarantee nothing is unlawful. Although it is unclear what the SAVE Act means, if it imposes notice-based criminal liability, then the Act is also unconstitutional because it would permit a “heckler’s veto” contrary to Reno v. ACLU, 521 U.S. 844 (1997).”
  5. “On the whole, the SAVE Act fails to give websites, publishers and others a reasonable opportunity to know what conduct is prohibited and what is permitted. With all its vagaries, the Act could allow ad hoc and subjective interpretations by prosecutors with attendant dangers of arbitrary and discriminatory application. And, given the severe penalties under the Act—up to life imprisonment—the risks and likely speech-chilling effect of the law is also severe. As a result, the Court should declare the SAVE Act unconstitutional and enjoin its enforcement.”

Ronald London and Lisa B. Zycherman were also on the complaint as counsel for the Plaintiff.

Former Correction Officials & Law Professors Weigh in on 11th Circuit Prison News Case Read More

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FAN 88.1 (First Amendment News) Court denies review in newspaper case about publishing truthful information disclosing police officers’ personal information

Today the Supreme Court denied review in Sun-Times Media, LLC v. DahlstromThe issues in the case were:

  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.”

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al.
  2. January 19, 2016:  Heffernan v. Paterson, N.J.

Review Denied

  1. Sun-Times Media, LLC v. Dahlstrom
  2. Hines v. Alldredge
  3. Yamada v. Snipes
  4. Center for Competitive Politics v. Harris
  5. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  2. Bell v. Itawamba County School Board 
  3. Electronic Arts, Inc. v. Davis
  4. Miller v. Federal Election Commission 
  5. Rubin v. Padilla
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

→ The Court’s next Conference is scheduled for January 8, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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FAN 88 (First Amendment News) Paul Clement Files Brief in 11th Circuit Prison News Case

[T]here is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners. The question here, as it has been in our previous First Amendment cases in this area, is what standard of review this Court should apply to prison regulations limiting that access. — Justice Harry Blackmun, Thornburgh v. Abbott 

Paul Clement

Paul Clement

Late Monday evening Paul Clement filed a brief on behalf of Prison Legal News, a project of the Human Rights Defense Center. The case is Prison Legal News v. Secretary, Department of Florida Corrections. Mr. Clement is counsel of record on behalf of the Prison Legal News. The controversy in the case centers around this: “The Florida Department of Corrections (FDOC), alone among the fifty States, the federal Bureau of Prisons (BOP), and every county jail in the country, is violating Prison Legal News’ (PLN) First Amendment rights by impounding every issue of its magazine based on the publication’s advertisements. This broad restriction on PLN’s free speech rights is neither logical nor necessary.” Thus did Mr. Clement begin his brief. He then stressed that “there is no evidence that those advertisements have suddenly become a security threat. There is simply no logical fit between the FDOC’s renewed censorial zeal and the current evidence that would justify its alone-in-the-nation censorship of a publication uniquely focused on the plights and rights of prisoners.”

Screen Shot 2015-12-08 at 9.57.17 AM→ PLN also made a Due Process argument: “Exacerbating its infringement on PLN’s free speech rights, the FDOC has also violated PLN’s due process rights, as the District Court correctly held. When a publisher’s First Amendment rights are restricted by prison officials, due process requires notice and a meaningful opportunity to challenge the prison’s censorship decision. But the FDOC has regularly failed to notify PLN of its decisions.”

 Equitable EstoppelPLN maintains that FDOC did this exact same thing about 13 years ago in 2003 whereafter PLN sued. FDOC then abandoned its censorial practices and adopted a new version of the rule  and then argued (successfully) to both the district court and the Eleventh Circuit that the case was moot.

The District Court held that the FDOC’s expansive censorship of PLN was logically connected to its security concerns. On the due process claim, however, it ruled that the FDOC regularly failed to notify PLN of impoundment and often failed to adequately explain the basis for impoundment. Because the FDOC would likely continue to deprive PLN of its due process rights, the District Court entered an injunction requiring the FDOC to modify its practices.

On Appeal, PLN argues that it should prevail based  on the holdings in Turner v. Safely (1987) and Thornburgh v. Abbott (1989), which set forth a four-part test for evaluating a prison system’s infringement of a publisher’s First Amendment rights.

Four First Amendment Arguments 

  1. Turner & Thornburgh satisfied: “The First Amendment question in this case is not whether the FDOC’s regulations are legitimate in the abstract; instead, the Court must decide whether the FDOC’s specific application of those rules violates PLN’s specific constitutional rights.” PLN argues that “the First Amendment applies within prison walls” and that the four-prong test of Turner and Thornburgh have been satisfied.
  2. No logical fit/rational basis for censorship: “The FDOC’s application of the Reading Material Rule to censor PLN is not logically related to its concerns with the relevant advertisements. The FDOC itself has previously told this Court that the exact same type of advertising content in Prison Legal News does not pose a material security threat, and there is no evidence to suggest that any new threat has arisen—nor that any threat existed in the 13 years before the FDOC began censoring PLN. The FDOC is thus barred from arguing otherwise now.” PLN thus argues that there “is no rational basis for the FDOC’s renewed censorship of PLN.”
  3. No meaningful alternatives: “PLN has no alternative means of exercising its free speech rights, and accommodating those rights would have no significant impact on Florida prisons.”
  4. Unnecessary censorship:” The FDOC’s application of its rule is an exaggerated response to its security concerns. . . . [W]hen every other well-run prison and jail in the country sees fit to allow PLN to circulate with the precise same advertisements, the evidence of an exaggerated response is overwhelming. After all, this is not a situation where Florida faces some unique dynamic that might justify its alone-in-the-nation policy.”

“In the end,” Mr. Clement maintained, “the FDOC’s censorship of PLN rests on no more than its unsupported say-so. It previously disclaimed any security concerns with PLN’s advertising content. It has offered no reason to justify its dramatic reversal. Any security concerns it does have are unrelated to the specific advertisements PLN runs in its publications. No other state prison system, nor county jail, nor the federal government considers it necessary to censor PLN.”

 Other lawyers on the brief included Michael McGinley (Bancroft), Randall Berg and Dante Trevisani (Florida Justice Institute), Lance Weber and Sabarish Neelakanta (Human Rights Defense Center), and Benjamin Stevenson and Nancy Gbana Abudu (ACLU Florida).

Center for Competitive Politics 10th Anniversary

Bradley Smith & Sen. Mitch McConnell

Bradley Smith & Sen. Mitch McConnell (credit:CCP)

December 2, 2015, Mayflower Hotel, Washington, DC: The occasion was a gala to celebrate the tenth anniversary of the Center for Competitive Politics. The featured speakers were Senator Mitch McConnell (R-KY) and columnist George Will. Some of those attending the event were: Dan BackerJan Baran, Michael Boos, Bobby  Burchfield, Robert  Corn-Revere, Allyson HoRobert LenhardShaun  McCutcheon, and Roger Pilon.

Bradley A. Smith, the Center’s Chairman and Founder, kicked off the event with some opening remarks. “It’s easy for those of us who believe in the First Amendment,” he said, “to feel that we’re constantly on the defensive.” He then added: “If you feel that we are on the defensive these days, think of how those poor saps in the speech squelching community must feel. In the last ten years, they’ve seen Citizens United; they’ve watched as SpeechNow.org has allowed citizens to pool their resources to speak, crushing their ability to control the debate. They’ve seen a series of strong FEC Commissioners, several of whom are here tonight, who take the law and the First Amendment seriously and who do not look for opportunities to expand their power; they’ve seen the Supreme Court gut their efforts to force candidates into rigged systems of government financed campaigns; they’ve watched President Obama effectively scuttle tax financing of presidential campaigns; they’ve seen the repeal of tax-financed campaigns in at least 4 states, the abolition of tax-funded conventions, a giant increase in the federal party contribution limits, and, finally, their efforts to expand compulsory disclosure to include private speech about issues defeated repeatedly in Congress and in many states. They’ve seen nearly 40% of those states that have limits on contributions raise those limits since 2010, in response to the pressure placed on candidates by Super PACs.”

Whether they are on the defensive or not, the fact is that the Center is most active in the campaign finance area — currently, it has 11 cases in litigation, seven of which involve challenges to disclosure laws (see here — list on link = incomplete).

Sen. Mitch McConnell (credit: CCP)

Sen. Mitch McConnell (credit: CCP)

Mr. Smith also presented Senator McConnell with the Center’s first James Madison Freedom of Speech award. Here are a few snippets of the Senator’s remarks:

— “If you can draw the rules of the game, you’re likely to win.” [The reference was to congressional incumbents.]

— “There is nothing more gratifying than Citizens United.”

— “I’m pretty happy where we are now. . . . Liberals are going berserk.”

— “Liberals have taken over eight of the eleven circuits. There is nothing they would like better than to shut us down.”

— “We’re going to try in the omnibus appropriations bill to eliminate Colorado II.”  [The reference is to FEC v. Colorado Republican Federal Campaign Committee (2001)]

See David Keating & Bradley Smith, “The Freedom Caucus Objects to Political Free Speech,” Wall Street Journal, December 6, 2015 Read More

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

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

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

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

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

* * * *

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

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

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

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

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

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

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

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

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FAN 87 (First Amendment News) Sunstein Urges Revising Holmes’s C&P Test in Our Terrorist Times

It is likely, perhaps inevitable, that hateful and violent messages carried over the airwaves and the Internet will someday, somewhere, be responsible for acts of violence. This is simply a statement of probability; it is not an excuse for violence. Is that probability grounds for restricting such speech? Would restrictions on speech advocating violence or showing how to engage in violent acts be acceptable under the First Amendment? — Cass Sunstein (1995)

He is the author of Democracy and the Problem of Free Speech (1995) and Why Societies Need Dissent (2005) in addition to several scholarly articles on subjects such as “The Future of Free Speech” (2002), “The First Amendment in Cyberspace” (1995), “Half-Truths of the First Amendment” (1993), “Free Speech Now” (1992,) “Low Value Speech Revisited” (1988), and “Pornography and the First Amendment” (1986).” And in 2014 he wrote an op-ed for The New Republic expressing reservations about New York Times Co. v. Sullivan (1964). Now he has his analytical sights set on Justice Holmes’s clear and present danger test.

He is, of course, Professor Cass Sunstein. In a recent op-ed he floated some new ideas about free speech in  terrorist times. Here are a few excerpts (with headings I inserted):

Professor Cass Sunstein

Professor Cass Sunstein

Revisit the Clear & Present Danger Test?

“The Intensifying focus on terrorism, and on Islamic State in particular, poses a fresh challenge to the greatest American contribution to the theory and practice of free speech: the clear and present danger test. In both the United States and Europe, it’s worth asking whether that test may be ripe for reconsideration. . . .”

“As the Court ruled in 1925, there would be no protection of speech whose ‘natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.; Under this test, of course, terrorist recruitment activity would not be protected.”

“As late as 1951, the Supreme Court allowed regulation of speech even when the danger was neither clear nor present. In Dennis v. United States, the Court upheld a conviction of people trying to organize the Communist Party to overthrow the U.S. government. . . .”

Rejecting the Clear & Present Danger Test

“One of the greatest and most influential judges in U.S. history, with the unlikely name of Learned Hand, also rejected the clear and present danger test. He believed that the free speech principle didn’t protect explicit or direct incitement to violence, even if no harm was imminent. If you’re merely agitating for change, the government cannot proceed against you, but if you’re expressly inciting people to commit murder you aren’t protected by the Constitution. . . .”

“True, there may be value in even the most extreme and hateful forms of speech: At the very least, people can learn what other people believe. But it’s fair to ask whether that benefit might be dwarfed by the cost, if those forms of speech create a genuine risk of large numbers of deaths. Hand himself argued that his narrow definition of incitement avoids subjectivity and overreach, and that it can’t be abused by the government to silence dissenters and unpopular causes. . .”

Proposed New Test

“To minimize the danger to free speech, it might be best to combine Hand’s approach with a form of balancing: If (and only if) people are explicitly inciting violence, perhaps their speech doesn’t deserve protection when (and only when) it produces a genuine risk to public safety, whether imminent or not. That approach would essentially retain the high level of protection that is now given to political speech and dissent of all kinds. . . .”

Note: Some of the ideas mentioned above were discussed earlier in Professor Sunstein’s book Laws of Fear: Beyond the Precautionary Principle (2005) pp. 219-223 and in his 1995 American Prospect essay titled “Is Violent Speech a Right?

* * * *

→ See also Ronald Collins, “Can We Tolerate Tolerance?,” Concurring Opinions, November 2, 2015

Forthcoming Book on the Press, the Supreme Court & Sedition Act of 1798

Wendell Bird

Wendell Bird

Wendell Bird is a practicing lawyer who in 2012 received a PhD in legal history from Oxford University. He has been a visiting scholar at Emory University School of Law (2012 to present). His doctoral thesis has now evolved into a forthcoming book to be released this February. Here is a blurb from his publisher:

The early Supreme Court justices wrestled with how much press and speech is protected by freedoms of press and speech, before and under the First Amendment, and with whether the Sedition Act of 1798 violated those freedoms. This book discusses the twelve Supreme Court justices before John Marshall, their views of liberties of press and speech, and the Sedition Act prosecutions over which some of them presided.

The book begins with the views of the pre-Marshall justices about freedoms of press and speech, before the struggle over the Sedition Act. It finds that their understanding was strikingly more expansive than the narrow definition of Sir William Blackstone, which is usually assumed to have dominated the period. Not one justice of the Supreme Court adopted that narrow definition before 1798, and all expressed strong commitments to those freedoms.

The book then discusses the views of the early Supreme Court justices about freedoms of press and speech during the national controversy over the Sedition Act of 1798 and its constitutionality. It finds that, though several of the justices presided over Sedition Act trials, the early justices divided almost evenly over that issue with an unrecognized half opposing its constitutionality, rather than unanimously supporting the Act as is generally assumed. The book similarly reassesses the Federalist party itself, and finds that an unrecognized minority also challenged the constitutionality of the Sedition Act and the narrow Blackstone approach during 1798-1801, and that an unrecognized minority of the other states did as well in considering the Virginia and Kentucky Resolutions.

The book summarizes the recognized fourteen prosecutions of newspaper editors and other opposition members under the Sedition Act of 1798. It sheds new light on the recognized cases by identifying and confirming twenty-two additional Sedition Act prosecutions.

At each of these steps, this book challenges conventional views in existing histories of the early republic and of the early Supreme Court justices.

* * * *

 See also Mary M. Cronin, An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America (Southern Illinois University Press, March 29, 2016)

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FAN 86.1 (First Amendment News) Court Denies Review in Occupational-Speech Case

Today the Supreme Court denied review in Hines v. Alddredge, the occupational-speech case.

The facts involved a Texas law that 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. The Fifth Circuit ruled against the First Amendment claim. Today, the Court refused to hear the case.

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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

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