Tagged: Supreme Court

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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)

Court allows for divided argument & extended time in labor union First Amendment case Read More

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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

Related Scholarly Works

→ Recent Blog Posts 

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

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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

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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

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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).

Commentaries

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

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

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

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

Paul M. Smith

Paul M. Smith

In case you missed it, Mr. Smith’s latest case is Electronic Arts, Inc. v. Davis, in which he filed a cert petition in the Supreme Court last September. The issue in the case is “whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The controversy stemmed from the depiction of  former NF players in the “Madden NFL” video game franchise.

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

The Cert Petition 

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

 Conflict in the Circuits

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

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

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

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

Suggested Approach

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

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

Related Articles, Events & Blogs

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

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

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

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

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

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

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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?

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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).