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FAN 109 (First Amendment News) Abrams Institute to Host Event on Commercial Speech

abrams-logoOn Monday, June 13th (8:45 a.m. – 2:30 p.m.) the Floyd Abrams Institute for Freedom of Expression will host a major conference on the commercial speech doctrine. The event will take place in New York City.

Click here to register for the event.

This conference on the commercial speech doctrine will focus on its changing and varying definitions, the regulation and potential liabilities based upon it, and the potential impact of Sorrell and Reed, two Supreme Court decisions. The discussion will center on its impact on the content creation community, lawyer speech, food and drug and other areas of corporate speech

Interview: Who’s Afraid of Commercial Speech? — 26 Years Later

Ron Collins (Harold S. Shefelman Scholar, University of Washington, School of Law) will interview Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit). 

The Shifting Boundaries Between Commercial & Non-Commercial Speech

A look at the varying definitions of commercial speech, historical basis for the commercial speech doctrine, and the likely impact of the Supreme Court’s decisions in Sorrell vIMS Health, Inc. and Reed v. Town of Gilbert.

  • Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  • Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  • Tamara Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law
  • Martin Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law

Moderator:  Vince Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

Commercial Speech:  The Definition Matters

“Commercial speech” is a dividing line between free expression and potential multimillion dollar liabilities in many areas of law.  A specific look at that divide in attorney, trademark, corporate-financial, and food and drug commentary.

  • Steven G. Brody, Morgan, Lewis & Bockius LLP
  • Denise Esposito, Covington & Burling and Former Chief of Staff to the Commissioner of the U.S. Food and Drug Administration (FDA)
  • Joshua M. King, Chief Legal Officer, Avvo, Inc.
  • Rebecca Tushnet, Professor of Law, Georgetown Law School

Moderators:  Chris Beall, Levine Sullivan Koch & Schulz LLP and Bruce Johnson, Davis Wright Tremaine LLP

Brand Journalism, Sponsored Content and the First Amendment

Difficult issues involving rights of publicity, copyright fair use and consumer protection disclosures arise in the First Amendment No Man’s Land between obvious commercial advertising and editorial speech by traditional media.  This panel examines the disparate jumble of legal tests and standards that apply when brands sponsor, influence or author news stories, features or commentary on matters of public concern and considers whether they can be harmonized with evolving commercial speech doctrine.

  • Deirdre Sullivan, The New York Times Company
  • Rick Kurnit, Frankfurt Kurnit Klein + Selz PCMary K. Engle, Federal Trade Commission, Associate Director, Division of Advertising Practices
  • Allison Lucas, BuzzFeed, General Counsel

Moderator:   Scott Dailard, Cooley LLP

Strategic Issues:  What questions are we asking now? Where is the law going?

An all room discussion on the strategic issues that should be raised in litigation concerning commercial speech and the First Amendment.

Moderator:  Timothy L. Alger, Greenberg Traurig LLP

The conference is sponsored by: Avvo Inc., Cooley LLP, Davis Wright Tremaine LLP, Frankfurt Kurnit Klein & Selz PC, Greenberg Traurig LLP, and Levine Sullivan Koch & Schulz, LLP.

Latest First Amendment Salon: Stone & Posner

Judge Posner & Prof. Stone

Judge Richard Posner & Prof. Geoffrey Stone

Last Monday The First Amendment Salon went on the road again, this time to the University of Chicago Law School. (The first “on the road” salon was in Los Angeles with a dialogue between Erwin Chemerinsky and Eugene Volokh.)

Geoffrey Stone (who serves on the Salon’s advisory board) interviewed Judge Richard Posner. The topic: “The Centrality of the First Amendment.”

By all measures, it was a quite an evening as Stone engaged the dapper jurist, drawing him out time and again. The result: a rare display of candor on a variety of subjects ranging from the significance of the press clause to the display of confederate flags.

To invoke the words of their former boss, Justice William Brennan, the discussion was atypically uninhibited, surprisingly robust, and exceptionally wide open.

Speaking in measured tones sprinkled with occasional chuckles, Posner seldom held back as the turn of his mind ventured from one provocative thought to another — all manifested in words, no less. Stone asked him about everything from the Dennis v. U.S. ruling (correctly decided), to the Pentagon Papers Case (correctly decided), to the wisdom of extending First Amendment protection to Edward Snowden re the release of secret government documents (not much simpatico here).

Along the dialogic way Posner, ever the maverick, occasionally answered Stone’s questions with a question only to have the Chicago professor up the conversational ante to tease out this or that point.

When the time came for questions from the audiences in New York and Washington, D.C. (via teleconferencing), the tenor remained composed yet spirited as the Judge replied with singular frankness concerning topics such as

Sometimes the discussion veered onto other topics such as:

  • executive power in wartime (should be considerable with little or no interference from the courts)
  • the Second Amendment and the individual right to bear arms (critical) and
  • Justice Holmes’s general deference to the democratic process (fine except in cases like Abrams).

Among other things, Posner also leveled a hearty blow at Roger Taney, this for his 1861 opinion in Ex Parte Merryman in which the Chief Justice took constitutional exception to President Lincoln’s suspension of the writ of habeas corpus. Pure folly by Posner’s jurisprudential measure.

All in all, everyone remained relaxed even as eyebrows raised from time to time. It made for a memorable evening. There was, of course more, much more. But I’ll stop there for now.

$60 Million Initiative @ Columbia University: The Knight First Amendment Institute Read More

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More on Swing Justices

A couple of weeks ago I posted that we are probably reaching the end of Justice Kennedy’s reign as the “swing Justice,” and perhaps the end of any one member of the Court being that person.  I just wanted to follow-up with some additional thoughts.

The concept of a “swing Justice” appears to be a product of the twentieth century.  In the nineteenth century, there were times where a particular Justice was a leader of the Court (think John Marshall), but that was different from saying that this person was the median vote. Owen Roberts was the first swing Justice in the modern sense (from 1932 to 1937), but the first one who was given that title was Byron White, in a 1972 New York Times profile. After that the term became a lot more popular.  Why I’m not sure.

Facebook is More Like a Cable Network than a Newspaper

As I worried yesterday, Facebook’s defenders are already trying to end the conversation about platform bias before it can begin. “It’s like complaining that the New York Times doesn’t publish everything that’s fit to print or that Fox News is conservative,” Eugene Volokh states.

Eight years ago, I argued that platforms like Google are much more like cable networks than newspapers–and should, in turn, be eligible for more governmental regulation. (The government can’t force Fox News to promote Bernie Sanders–but it can require Comcast to carry local news.) The argument can be extended to dominant social networks, or even apps like WeChat.

As I note here, to the extent megaplatforms are classifiable under traditional First Amendment doctrine, they are often closer to utilities or cable networks than newspapers or TV channels. Their reach is far larger than that of newspapers or channels. Their selection and arrangement of links comes far closer to the cable network’s decision about what channels to program (where such entities, by and large, do not create the content they choose to air), than it does to a newspaper which mostly runs its own content and has cultivated an editorial voice. Finally, and most importantly, massive internet platforms must take the bitter with the sweet: if they want to continue avoiding liability for intellectual property infringement and defamation, they should welcome categorization as a conduit for speech, rather than speaker status itself.

Admittedly, if there is any aspect of Facebook where it might be said to be cultivating some kind of editorial voice, it is the Trend Box. It is ironic that they’ve gotten in the most trouble for this service, rather than the much more problematic newsfeed. But they invited this trouble with their bland and uninformative description of what the Trend Box is. Moreover, if the Trend Box is indeed treated as “media” (rather than a conduit for media), it could betoken a much deeper challenge to foundational media regulation like sponsorship disclosures–a topic I’ll tackle next week.

Platform Responsibility

Internet platforms are starting to recognize the moral duties they owe their users. Consider, for example, this story about Baidu, China’s leading search engine:

Wei Zexi’s parents borrowed money and sought an experimental treatment at a military hospital in Beijing they found using Baidu search. The treatment failed, and Wei died less than two months later. As the story spread, scathing attacks on the company multiplied, first across Chinese social networks and then in traditional media.

After an investigation, Chinese officials told Baidu to change the way it displays search results, saying they are not clearly labeled, lack objectivity and heavily favor advertisers. Baidu said it would implement the changes recommended by regulators, and change its algorithm to rank results based on credibility. In addition, the company has set aside 1 billion yuan ($153 million) to compensate victims of fraudulent marketing information.

I wish I could include this story in the Chinese translation of The Black Box Society. On a similar note, Google this week announced it would no longer run ads from payday lenders. Now it’s time for Facebook to step up to the plate, and institute new procedures to ensure more transparency and accountability.

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Big Mike: Non marital families

Amidst a recent move, I had one of those conversations that happen for those of us who teach family law.  My mover, Big Mike, about halfway through the day, discovered I taught family law.  I saw the spark in his eyes. “Well then I really need to talk to you!” he said.  Sometimes this means someone has had a terrible experience with a lawyer, or with a judge.  After all, family law is one of the most common intersections that people have with lawyers.  Just as often, they have a situation they want to discuss.

That was the case with Big Mike, who several trips later up and down the stairs, started to tell me his story, in the hopes that I might have some advice for him. What was fascinating about Big Mike’s story was what it revealed that is remarkably commonplace:  the legal uncertainties and lack of support of non-marital families.

Big Mike has a son who is 11 years old.  When his son was 11 months old, Big Mike came home to a cleaned out apartment, the baby’s mother gone along with his son and her 7 year old daughter.  They had long since ended their relationship, but Mike thought they would work out how to raise their son together.  Instead, she had decided to move to live with a friend in another state.  Big Mike found them and made it clear that he wanted to remain in the life of his son.  She responded by giving him the baby, and since then he has raised his son.  His son’s mother made no further contact nor did she visit.  She remained out of state with her daughter, and subsequently got into a relationship with a man who molested her daughter. She moved a number of times, and continued to make bad life choices.   Meanwhile, Mike maintained contact with his son’s grandmother, who his son visits periodically. Recently the birthmom made contact with him, and her text made him concerned that she might want to try to establish a relationship with her son, or even might seek custody or visitation.  The message indicated her regret for not being a good parent, but that she would like to make amends somehow.  It also hinted at the possibility that she might move back to Florida. 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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The Secret Life of John Roberts

188px-John_RobertsIlya Shapiro and Randy Barnett are making the argument that the Chief Justice’s 2012 opinion upholding the Affordable Care Act contributed to the rise of Donald Trump.  I don’t agree with their analysis, in part because causation in history is almost never so simple or direct.  Their hypothesis, though, does lead me to ask the following question: Why are some people still so angry about that opinion? Of course the stakes were large, but you could say the same about many controversial 5-4 cases. And the Chief Justice’s opinion may be flawed, but no more so than many others.

I submit that the answer is that we know (through leaks after the decision) that the Chief Justice changed his vote sometime after conference. This must be immensely frustrating to the people who represented the challengers of the ACA and their supporters. They were so close to winning. Or they did win and then that was taken from them. That often leads them to suggest motives outside of the record that drove the Chief Justice’s switch–wanting to be popular at cocktail parties, concern about the Court’s image, the statements made by Democrats after the oral argument, etc.

There is, though, an irony in this attitude. How the Chief voted in conference is an extra-judicial fact that is irrelevant to the opinion. Critics of the opinion are therefore largely basing their dismissal of the opinion on something outside of the four corners of the case as they accuse the Chief Justice of basing his judgment on something outside of those same four corners. Pot meet kettle.

 

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FAN 107.1 (First Amendment News) FIRE Launches Free-Speech Podcast

FIRE's Nico Perrino

FIRE’s Nico Perrino

Here’s how the folks at the Foundation for Individual Rights in Education (FIRE) are billing their latest free-speech undertaking:

So to Speak: The Free Speech Podcast takes an uncensored look at the world of free expression through personal stories and candid conversations.

New podcast episodes will be posted bi-weekly on Thursdays.

 The idea for the podcasts originated with Nico Perrino, Director of Communications at FIRE. Mr. Perrino will host the podcasts.

→ The first podcast (here) is an interview with Brookings Institution Senior Fellow Jonathan Rauch, author of Kindly Inquisitors: The New Attacks on Free Thought

Coming episode: “A future podcast will explore the concept of ‘defending my enemy‘ with award-winning journalist Glenn Greenwald and criminal defense attorney David P. Baugh. Listeners can expect a variety of show formats throughout the series, including interviews, narrative features, news shows, and the occasional speech.”

Those interested can subscribe and listen to So to Speak on iTunes and Stitcher, or download episodes directly from SoundCloud.

Coming this Fall: The launch of FIRE’s online First Amendment library (see here).

Disclosure: I am a consultant to FIRE.