FAN 170 (First Amendment News) Masses case “reargued” in 2nd Circuit — Floyd Abrams vs Kathleen Sullivan

What follows is a short article by Professor Thomas Healy based on a “reargument” of Masses Publishing Co. v. Patten (2nd Cir., 1917), which overruled Judge Learned Hand’s district court opinion.

The event was hosted by the Second Circuit Court of Appeals in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association. 

Second Circuit Chief Judge Robert Katzmann introduced the event. Noted First Amendment lawyer Floyd Abrams appeared on behalf of Postmaster Patten and Kathleen Sullivan (former Stanford Law dean and seasoned appellate litigator) appeared on behalf of the Masses Publishing Co.

The case was argued before Circuit Judges 

Professor Healy, who attened the “reargument,” kindly offered this article for the benefit of FAN readers.  

→ A video of the oral arguments can be found here on the online First Amendment Library.

* * * * 

Prof. Thomas Healy (credit: Sean Sime)

If It Please the Court

“I’m the force of darkness tonight,” said Floyd Abrams in the lobby of the federal courthouse in Manhattan last week. It was an unfamiliar role for Abrams, the eminent First Amendment attorney who has spent his career defending the forces of enlightenment. But tonight, the script was flipped. Abrams was appearing for the government in a “reargument” of a landmark free speech case decided a hundred years ago, during World War I.

Judge Learned Hand

The post office had banned from the mail a radical magazine called The Masses because of its criticism of the war, and Judge Learned Hand had bravely ruled in the magazine’s favor. His colleagues on the appeals court had been less valiant, reversing his opinion and emboldening the Justice Department to arrest nearly two thousand people under the Espionage Act. Now, in a bit of historical reimagining, a panel of three current appeals judges had gathered to see if they could do better, and Abrams was given the task of arguing the government’s case.

His strategy quickly became clear. “I would urge the court to keep two things in mind,” he began. “First, we are at war – over five million soldiers have died and over forty million soldiers and civilians have died or been wounded.”

“Does the right of dissension become a casualty of war?” Judge Denny Chin broke in. “I wouldn’t say a casualty,” replied Abrams, “but that circumstance has to be taken into account.”

“What about the war on terror, where it’s been going on forever?” Chin asked, jumping ahead of the story. “If war became the rule and not the exception, we might as well just have one standard,” said Abrams. But this was World War I, he reminded the judges – a defined war, with defined enemies. “There were enormous casualties occurring, enormous turmoil on the streets.”

Abrams is eighty-one years old, with a fringe of white hair and an easy, avuncular style. He doesn’t spar with judges or overwhelm them with facts. He chats casually with them until they are lulled into a state of acquiescence. It was happening already.

“Isn’t the law in your favor here in 1917?” asked Judge Pierre Leval.

“I’m ready to sit down,” Abrams offered.

“You’re here to persuade us,” Leval responded.

“I’m starting out ahead of the game, I think.”

His adversary, Kathleen Sullivan, had some catching up to do. The former dean of Stanford Law School, Sullivan tried to turn the discussion from war to democracy. That had been Hand’s approach in his Masses opinion. Conceding the government’s power to prosecute the war, he had argued that the Espionage Act should be read narrowly in light of “the normal assumption of democratic government that the suppression of hostile criticism does not turn upon the justice of its substance or the decency and propriety of its temper.” Hand had risked his reputation in writing those words, and he fell into despair when the appeals court reversed him. Later, he blamed the decision for his failure to reach the Supreme Court.

Floyd Abrams & Kathleen Sullivan in front of bust of Judge Learned Hand.

Sullivan was here to vindicate him. The courtroom was filled with free speech lawyers, scholars, and enthusiasts. A bust of Hand looked on. “We do not in our First Amendment tradition allow people to be punished or silenced because they have brought the government into odium,” Sullivan told the judges.

“What about during war?” Chin asked, picking up where Abrams had left off.

“I don’t question the power of Congress to limit activities, including speech, that threaten the war effort,” Sullivan replied. But The Masses had been blocked from the mails for publishing cartoons and poems that posed no imminent danger. “I should win easily,” she added.

Afterward, the judges reflected on the significance of the Masses case and the expansion of free speech rights over the past century. No decision was issued, but Judge Leval seemed to speak for the court when he expressed some doubt about Hand’s ruling. “It’s a very sly opinion,” he noted. “Hand knew perfectly well there was no precedent supporting it.”

Sullivan was gracious in imaginary defeat. She walked over to Abrams and extended her hand, which he kissed. Soon he was surrounded by admirers, who marveled at his ability to switch sides so effortlessly and adopt the position of his nemesis.

“How did it feel?” an observer wanted to know.

“It was liberating.”

↓ ↓ ↓ ↓

→ Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

→ Related Forthcoming Book: Eric Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech

Related book: Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America (2013)


UC Davis Law Review, Issue 51:1 (November 2017)

Symposium — Future-Proofing Law: From rDNA to Robots

Future-Proofing Law
Anupam Chander

A Simpler World? On Pruning Risks and Harvesting Fruits in an Orchard of Whispering Algorithms
Mariano-Florentino Cuéllar

The Real Law of Virtual Reality
Mark A. Lemley & Eugene Volokh

The Governance of Data and Data Flows in Trade Agreements: The Pitfalls of Legal Adaptation
Mira Burri

Law for the Platform Economy
Julie E. Cohen

Mismatched Regulation: Genetically Modified Mosquitoes and the Coordinated Framework for Biotechnology
Albert C. Lin

Resilience: A New Tool in the Risk Governance Toolbox for Emerging Technologies
Gary E. Marchant & Yvonne A. Stevens


Effectuating the Benefits of the Twombly Plausibility Standard in Patent Infringement Cases: Application of Rule 9 Post-Abrogation of Rule 84
Elizabeth Chang

The Forced Choice of Dignified Disposal: Government Mandate of Interment or Cremation of Fetal Remains
Elizabeth Kimball Key

Privacy and Criminal Certainty: A New Approach to the Application of the Private Search Doctrine to Electronic Storage Devices
Joseph Little



Law as Beauty

Law book illustrations serve many practical purposes. Yet they also can be items of simple beauty. Our gallery tour closes with books in which the bridge between abstraction and the real—the two polarities at the heart of legal experience—opens onto a view of the aesthetic.

In this magic space of the imagination, law gives birth to art that stands on its own.

These books gently overflow the boundaries of law as a field of knowledge and the law book as a category of publishing. They thereby pay tribute to law and to the publishing of books as endeavors that implicate our deepest humanity. Read More


Supreme Court Recusal Practice

The other day Justice Kagan realized that she should have recused herself from a case that was argued to the Court last month. (And then she did recuse.) This triggers a modest idea on my part. Why don’t Supreme Court Justices just explain why they are recusing themselves from a matter, rather than making us guess?

I suppose the answer is something like the following:  If Justices start giving reasons for a recusal, then litigants may start filing recusal motions that say “You recused yourself in Case A for Reason X, therefore you must recuse yourself from my case.” Or maybe Justices don’t want people to know the stock that they own at a given moment, since that ownership could lead to a recusal.

Whatever the reason, more transparency in this area would be helpful and, I would submit, not all that harmful.


FAN 169.2 (First Amendment News) Court grants cert. in three free speech cases — five such cases this term

As listed below, the Roberts Court has rendered rulings in 44 free-speech First Amendment cases. And its eagerness to decide such cases continues. Earlier today, the Court granted cert. in three more free speech cases, this in addition to the Masterpiece Cakeshop case, which will be argued on December 5th, and Janus v. American Federation of State, Municipal and County EmployeesThe three new cases are:

  1.  Minnesota Voters Alliance v. Mansky (Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment. // lead counsel for Petitioner: Wencong Fa)
  2. National Institute of Family and Life Advocates v. Becerra (Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the 14th Amendment. // lead counsel for Petitioner: David A. Cortman)
  3. Lozman v. City of Riviera Beach, Florida (Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law. //  lead counsel for Petitioner: Pamela S. Karlan)

Comment: Generally speaking, each Court has its constitutional law centerpiece.

  • for the Fuller Court it was Substanive Due Process
  • for the Hughes Court it was the Commerce Clause
  • for the Vinson Court it was, among other things, the Communist-era cases
  • for the Warren Court it was Equal Protection
  • for the Burger Court it was the Criminal Justice counter-revolution
  • for the Rehnquist Court it was Federalism, and now
  • for the Roberts Court it is free-speech freedom under the First Amendment.

Roberts Court Free- Speech First Amendment Cases (from FIRE’s First Amendment online library):

  1. Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)
  2. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006)
  3. Garcetti v. Ceballos, 547 U.S. 410 (2006
  4. Randall v. Sorrell, 548 U.S. 230 (2006
  5. Beard v. Banks, 548 U.S. 521 (2006)
  6. Davenport v. Washington Educ. Association, 551 U.S. 177 (2007)
  7. Tennessee Secondary School Athletic Association v. Brentwood Academy, 551 U.S. 291 (2007)
  8. E.C. v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)
  9. Morse et al. v. Frederick, 551 U.S. 393 (2007)
  10. United States v. Williams, 553 U.S. 285 (2008)
  11. Davis v. Federal Election Commission, 554 U.S. 724 (2008)
  12. New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)
  13. Pleasant Grove City, UT, et al v. Summum, 555 U.S. 460 (2009)
  14. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)
  15. Ysursa v. Pocatello Educational Association, 555 U.S. 353 (2009)
  16. Locke v. Karass, 555 U.S. 207 (2009)
  17. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
  18. United States v. Stevens, 559 U.S. 460 (2010)
  19. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
  20. Christian Legal Society v. Martinez, 561 U.S. 661 (2010)
  21. Milavetz, Gallop, & Milavetz v. United States, 559 U.S. 229 (2010)
  22. Doe v. Reed, 561 U.S. 186 (2010)
  23. Snyder v. Phelps, 562 U.S. 443 (2011)
  24. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
  25. Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)
  26. Borough of Duryea v. Guarnieri, 564 U.S. 379 (201
  27. Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011)
  28. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)
  29. Reichle v. Howards, 132 S. Ct. 2088 (2012)
  30. Golan v. Holder, 132 S. Ct. 873 (2012)
  31. Knox v. Service Employees International Union, 132 S. Ct. 2277 (2012)
  32. United States v. Alvarez, 132 S. Ct. 2537 (2012)
  33. Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013)
  34. McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014)
  35. Wood v. Moss, 134 S. Ct. 2056 (2014)
  36. Lane v. Franks, 134 S. Ct. 2369 (2014)
  37. Harris v. Quinn, 134 S. Ct. 2618 (2014)
  38. McCullen v. Coakley, 134 S. Ct. 2518 (2014)
  39. Williams–Yulee v. The Florida Bar 135 S. Ct. 1656 (2015)
  40. Walker v. Sons of Confederate Veterans (2015)
  41. Reed v. Town of Gilbert 135 S. Ct. 2218 (2015)
  42. Expressions Hair Design v. Schneiderman581 U.S. ___ (2017)
  43. Matal v. Tam582 U.S. ___ (2017)
  44. Packingham v. North Carolina, 582 U.S. ___ (2017)

FAN 169.1 (First Amendment News) FIRE calls on Brandeis President to reinvite playwright to present controversial Lenny Bruce Play

disclosure: I was one of the signatories to this letter to Brandeis University’s President. 

Press release from Foundation for Individual Rights in Education:

An open letter to Brandeis regarding the cancellation of Lenny Bruce-inspired play, ‘Buyer Beware’

Ronald D. Liebowitz                                                                                                           November 13, 2017
Office of the President, MS 100
Irving Enclave 113
Brandeis University
415 South Street
Waltham, MA 02453


Sent via U.S. Mail and Electronic Mail (president@brandeis.edu)

Dear President Liebowitz,

Ronald D. Liebowitz, President of Brandeis University

We are a group of free speech advocates with a resilient interest in comedian Lenny Bruce’s life and legacy. We write to you today because we are concerned by recent reports that a play scheduled to be staged this month at Brandeis University was postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” We call upon Brandeis to reaffirm the principles of freedom of expression, inquiry, and debate upon which any institution of higher education must be based, and to commit itself to engaging with the challenging material in the play by staging it as intended — not censoring it.

It is our understanding that the play, “Buyer Beware,” written by celebrated playwright and Brandeis alumnus Michael Weller, uses excerpts and ideas from Lenny Bruce’s routines as catalysts for a fictional debate about free speech on Brandeis’ campus. Lenny Bruce’s comedy has long been both controversial and groundbreaking. During his lifetime, he was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. “We drove him into poverty and bankruptcy and then murdered him,” said Vincent Cuccia, one of Bruce’s New York prosecutors. “We all knew what we were doing. We used the law to kill him.”

[Ronald D. Liebowitz, Oct. 26, 2016: Lenny Bruce exerted an impact upon his contemporaries and successors like no one else in his field, and his influence on comedy and well beyond comedy continues today. . . .  It is quite appropriate that Brandeis, with our motto of truth even unto its innermost parts, is now home to the personal papers of an individual who deeply believed in that same ideal, even to the point of persecution. We are honored to have been chosen as the keepers of this historic collection . . . . ]

Americans have since recognized the injustices dealt to Bruce. He was the last comedian to be criminally prosecuted for obscenity in the United States. Today, Bruce is revered as a champion of free speech and First Amendment principles — so much so that he was posthumously pardoned by New York Governor George Pataki in 2003. His life story serves as a cautionary tale of what happens when we censor artistic expression.

Playwright Michael Weller

Given this history, the undersigned are sensitive to the possibility that Bruce’s words may again be censored. Our unease is amplified by the fact that such censorship may occur at Brandeis University, named after the staunch free speech advocate and United States Supreme Court Justice Louis Brandeis. Our concern is all the greater insofar as the university is the institutional custodian of the Lenny Bruce archives and much of Bruce’s legacy.

A 2004 box set of Bruce’s comedy was titled “Let the Buyer Beware.” Perhaps not coincidentally, “Buyer Beware” is also the title of Weller’s play. Surely when Brandeis accepted the responsibility of preserving Bruce’s archives within its library, it well understood the risks associated with doing so — caveat emptor — and tacitly, if not explicitly, agreed that it would spare Bruce the injustice of committing or enabling his posthumous censorship.

In a statement responding to the cancellation of the fall production of “Buyer Beware,” Brandeis announced that “faculty members considered the challenging issues [the play] raised” and decided that more time was needed to produce the play “appropriately.” The statement goes on to relinquish the university’s responsibility for the play’s subsequent cessation by foisting responsibility upon Weller, who did not approve of this more “appropriate” production, which subsequent reports indicate was not even presented to him. According to a statement from the Dramatists Guild of America and the Dramatists Legal Defense Fund, Weller “has heard only indirectly about the possibility of doing it at ‘a 60-seat black box theatre in Watertown that has some lights, and a budget for one or two professional actors.’”

Kitty Bruce (daughter of Lenny Bruce & signatory to letter)

Numerous reports indicate that the decision to forestall the planned production of “Buyer Beware” comes amid a concerted effort by some Brandeis students and alumni to cancel the play. The campaign was allegedly led by a Brandeis alumna, who reportedly admitted to having never read the play’s script, yet claimed that it “is an overtly racist play and will be harmful to the student population if staged.” Scholars of Bruce’s life know well that attempts at prior restraint are insidious and beget more censorship. Indeed, after Bruce was first prosecuted in one court, additional prosecutions soon followed. “Don’t lock up these 6,000 words,” Bruce pleaded to one New York City judge during a court hearing.

We write to ask for more details about Brandeis’ decision to cancel this month’s production of “Buyer Beware.” What material, exactly, did the university consider too “challenging” for its students and faculty? And why, when an agreement could not be reached with Weller to find a more “appropriate” setting for the play, did the university decide not to stage the production as intended, and instead defaulted to functionally censoring the “challenging” material instead of openly engaging with it?

comedian Penn Jillette (signatory to letter)

We call upon Brandeis University to answer these questions in a manner consistent with the principles of freedom of speech to which the university claims to commit itself, principles that are integral components of Lenny Bruce’s and Louis Brandeis’ legacies. If it cannot, we ask you to immediately reverse the decision to cancel this month’s production of “Buyer Beware” and to reinvite Weller to stage it as intended. The play itself presents a direct challenge to the university —  according to The Brandeis Hoot: “If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?”

Again, we urge the university to commit itself to reinviting Weller to stage “Buyer Beware” as intended, thereby defending the very free speech principles for which Lenny Bruce fought throughout his life.

lawyer Robert Corn-Revere (signatory to letter)

To you, President Liebowitz, we repeat the question and also ask: Did the Lenny Bruce archives end up in the “appropriate” place?

We look forward to hearing from you by Friday, November 17.


Foundation for Individual Rights in Education

Kitty Bruce
Daughter of Lenny Bruce
Founder, The Lenny Bruce Memorial Foundation

Penn Jillette
Comedian and magician, Penn & Teller

Robert Corn-Revere
Partner, Davis Wright Tremaine LLP
Attorney responsible for successfully petitioning Governor George E. Pataki to grant the first posthumous pardon in New York history to Lenny Bruce in 2003

Ronald K.L. Collins
Harold S. Shefelman Scholar
University of Washington, School of Law
Co-author, The Trials of Lenny Bruce

David M. Skover
Fredric C. Tausend Professor of Constitutional Law
Seattle University School of Law
Co-Author, The Trials of Lenny Bruce

Noam Dworman
Owner, Comedy Cellar

Ted Balaker
Director, Can We Take a Joke?, a film about the life and legacy of Lenny Bruce

Courtney Balaker
Producer, Can We Take a Joke?


Unfit Representatives

My friend Ron Krotoszynski had an op-ed in The New York Times yesterday pointing out that the Senate could expel Roy Moore, if he is elected, and that there are plausible precedents for doing so based on sexual wrongdoing. I want to expand on that discussion a bit.

Over the past year, I’ve been struck by the following thought. The clauses in the federal and state constitutions for removing officials (like impeachment, expulsion, or recall) rest on an unstated premise that the removal is justified because the voters were unaware of the official’s misconduct when he or she was last elected. If you look at almost every example where an elected official was removed, this was the state of play.

Suppose, though, that the voters are fully aware of the misconduct prior to the election and elect the person anyway. Then a removal based on that misconduct must rest on the idea that the voters were corrupt, stupid, etc. Basically, they are not entitled to elect somebody like that. But why not? I don’t see how any democratic theory can justify that. If the people in a state or a district want to elect a miscreant and suffer the consequences, so be it.


Laughing at the Law

Because law is so serious, it begs to be satirized. What better reason is there for humor?

Publishers have eagerly responded to this need with a wealth of figurative illustrations—biting, mocking, aggressive, droll, or simply entertaining.

These illustrations lift readers above the legal texts in which they appear, placing them in a critical relationship to legal rules and the language of the law.

Hi, Allen! How’s the weather up there?

The penultimate case in our digital gallery tour—“Laughing—and Crying—at the Law”—is devoted to such images (as always, mouse over for links).  Read More


General Grant’s Retirement Pension

One remarkable story in Ron Chernow’s new biography of Ulysses S. Grant involves the special pension granted to him when he was terminally ill. In 1884, Grant suffered two awful blows. First, he was diagnosed with throat cancer. Second, he was wiped out when his money manager was revealed to be running a Ponzi scheme. In response, Grant’s friends lobbied for Congress to restore his Army rank and his army pension. (Grant had given up both when he became President.)

Here how’s that bill became law. The House of Representatives approved the bill right before Noon on March 4th, 1885, which marked the legal end of that Congress. The Senate was then called into session, the hands on the Senate clock were turned back twenty minutes, and the bill was passed “before Noon.” The outgoing President, Chester Arthur, then signed the bill.

All quite unconstitutional. But nobody complained.


FAN 169 (First Amendment News) NAACP & other civil rights groups file brief in same-sex wedding cake case

A decision from this Court in favor of Masterpiece would require reasoning that would be readily deployed to trample the rights of the most vulnerable people in our society by excusing discrimination based upon race, national origin, or any other protected category, and would roll back the substantial strides this country has made in eradicating discrimination in our public life and economy. This Court should not open a new avenue for discrimination by commercial businesses—one that is inconsistent with this Court’s precedents and the principle that states may protect equal access to publicly available goods and services for all its residents. 

So states the amicus brief filed by the NAACP and other civil rights groups in Masterpiece Cakeshop v. Colorado Civil Rights CommissionWhat began as a religious rights case, and then into a free speech case, may well turn into a civil rights race case and more. Simply consider the opening lines of the brief filed by the Lawyers’ Committee for Civil Rights Under Law, Asian American Legal Defense and Education Fund, Center for Constitutional Rights, Color of Change, The Leadership Conference on Civil and Human Rights, National Action Network, National Association for the Advancement of Colored People, National Urban League, and the Southern Poverty Law Center:

“[P]etitioners’ proposed free speech exception to anti-discrimination public accommodation laws could decimate those laws’ critical protections for African Americans, including the growing number of African Americans who identify as lesbian, gay, bisexual, transgender (LGBT), and other minority populations that have been subjected to a history of discrimination.”

“Despite the advances our country has made in eradicating segregation and other forms of invidious discrimination, African Americans, including LGBT African Americans who experience discrimination at the intersection of race and sexual orientation or gender identity, continue to suffer from structural and pervasive discrimination, as evidenced by the recent increase in hate crimes across the country. Discrimination infects the marketplace as well, where minority consumers continue to receive worse treatment and experience disparate access to goods and services as a result of business owners’ biased attitudes. Today, public accommodation laws remain vital by providing relief when consumers experience discrimination.”

The sumamry of the argument closes with the following: “Public accommodation laws strengthen our country by ensuring our economy is an inclusive one where all people regardless of background, identity, or belief can participate free of discrimination. This Court must see Masterpiece’s arguments for what they are—a request for permission to lawfully discriminate against minorities. Business owners’ religious and speech interests must not trump the rights of disenfranchised individuals to be free from discrimination. Masterpiece’s proposed exception to public accommodation laws would potentially apply to any business and would gut this Court’s well-established precedent and nullify long standing state, federal, and local public accommodation laws, causing a dramatic rollback of hard-won civil rights protections. . . .”

Ilana H. Eisenstein (counsel of record)

“The unprecedented carve-outs proposed by Masterpiece and the federal government could apply well beyond the wedding context to other businesses that are also arguably engaged in expressive activities, such as culinary arts, interior design and architecture rms, fashion boutiques, beauty salons, and barber shops, who would prefer not to associate with racial, ethnic, or other underrepresented minorities. And even beyond artistic commercial enterprises, a free-speech exception could potentially exempt a broad range of businesses that claim free-speech objections from serving particular customer groups.”

The counsel of record in the case is Ilana H. Eisenstein. From 2014 through 2017, Ms. Eisenstein served as an Assistant to the Solicitor General, U.S. Department of Justice. In that capacity, she prepared government petitions and briefs for filing in the Supreme Court, and advised the Solicitor General regarding federal appellate litigation. She has argued five cases and briefed over 75 others in the high Court.

Knight First Amendment Institute: Digital Rights, Federal Courts, and First Amendment Experts Endorse Suit against President Trump’s Twitter Blocking

NEW YORK (November 7, 2017) – The Electronic Frontier Foundation, a group of First Amendment scholars, and a group of federal courts scholars filed amicus briefs yesterday in support of a lawsuit filed by the Knight First Amendment Institute at Columbia University contending that President Trump violated the Constitution by blocking seven people from his Twitter account because of their viewpoints. The three amicus briefs support the Knight Institute’s Friday evening filing in the lawsuit, in which the Institute argued that the president’s Twitter account is subject to the First Amendment and the court has the authority to stop the president and his aides from violating First Amendment rights.

EFF’s amicus brief contends that social media platforms — and government officials’ social media accounts in particular — play a significant role in democratic discourse and the democratic process, and therefore must be regulated by the First Amendment. Social media is also used to communicate vital public safety information, and punishing someone by denying them access can have dire consequences. Read the brief and a summary of the arguments.

“Governmental use of social media platforms to communicate to and with the public, and allow the public to communicate with each other, is pervasive. It is seen all across the country, at every level of government. It is now the rule of democratic engagement, not the exception,” said EFF Civil Liberties Director David Greene. “The First Amendment prohibits the exclusion of individuals from these forums based on their viewpoint. President Trump’s blocking of people on Twitter because he doesn’t like their views infringes on their right to receive public messages from government and participate in the democratic process.”

Prof. Stephen Vladeck

A group of eight federal-courts scholars joined an amicus brief prepared by Brian Burgess and Andrew Kim of Goodwin Proctor with Professor Steve Vladeck of the University of Texas Law School. The brief contends that the court has the authority to enjoin the president for his official conduct, and that the ruling in the case Mississippi v. Johnson does not prohibit the court from doing so, in light of more recent Supreme Court cases. Read the brief.

“Our brief offers a modest contribution by highlighting how, contrary to the government’s argument, federal courts can — and periodically do — issue coercive relief directly against a sitting president,” said Vladeck. “The government relies for the contrary view on language taken out of context from a 150-year-old Supreme Court decision, but as we demonstrate, that language, even read for all it’s worth, has been overtaken by subsequent events — and for good reason.”

Prof. Joshua Geltzer

The final amicus brief was filed by Georgetown Law Center’s Institute for Constitutional Advocacy and Protection on behalf of seven First Amendment scholars, including Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe. ICAP’s brief argues that, by fostering a dialogue on @realDonaldTrump that includes official statements of government policy, responses by other Twitter users, and replies by the president to those responses, the president has created a digital-age public forum under the First Amendment, which prohibits viewpoint discrimination such as blocking critics. Read the brief and a summary of the arguments.

“This case is about applying established First Amendment principles to emerging technologies,” said ICAP’s Executive Director and Visiting Professor of Law Joshua Geltzer. “When the government creates a space for public discussion and debate, whether in a physical or virtual setting, it creates a public forum. The Constitution then bars the government from silencing those who question it and giving voice only to those who praise it.”

For more information, go here.

Related: Adam Liptak, Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers, New York Times, Nov. 6, 2017

Controversy over Lenny Bruce play heats up at Brandeis University 

       Brandeis University poster for 2016 program on Lenny Bruce

Following a flood of complaints, Brandeis University has scrapped plans for the performance of a controversial play on its campus accused of being critical of the Black Lives Matter movement. — The College Fix, Nov. 1, 2017

Michael Weller told Boston public radio station WBUR-FM that he was “personally heartbroken” over the decision and called the handling of his play by the university department “dangerous and corrosive.” Playbill, Nov. 7, 2017

The Comedian & the University: The papers and audio files of Lenny Bruce, the ribald comedian who changed the face of American comedy, are housed at Brandeis University (his obscenity trial transcripts are available on FIRE’s online First Amendment Library).  The Lenny Bruce Collection came to Brandies in 2014 thanks to a grant from the Hugh M. Hefner Foundation. In late October of 2016, Brandeis held a symposium to mark the occasion with Kitty Bruce (the comedian’s daughter), Christie Henfner (CEO of Playboy Enterprises and former Brandeis University Trustee), and Lewis Black (the famed comedian) as featured speakers.

Assumption of the RiskOf course, by agreeing to house the Lenny Bruce papers and recordings, Brandeis University necessarily assumed the risk that comes with such a responsibility — i.e., the propsect of offending some people.

Playright Michael Weller

Were the faculty and administration of Brandeis University prepared to assumed that risk? That question came to the forefront when the playright Michael Weller attempted to show a Lenny Bruce play (“Buyer Beware”) at Brandeis, his alma mater.

The Plot’s the Thing (from The Brandeis Hoot): “Sitting outside a dorm, the main character, Ron, repeats what he hears on his MP3 as he listens to audio recordings of Lenny Bruce, a white stand-up comedian who drew national attention in the 1950s and 60s for his obscenity-laced performances and unyielding commitment to free speech. Ron found the audio in the Lenny Bruce archives in the Brandeis library. The supposed quote contains eight uses of the n-word and four other slurs which are also repeated.

“‘Imagine if we just kept saying these words over and over again, sooner or later they’d become meaningless noise,’ says Ron quoting Bruce, in between chains of slurs. A black student overhears Ron’s quotation of Lenny Bruce and then takes to Facebook to express himself.”

“Ron plans a comedy routine in the style of Lenny Bruce but does not intend to use Bruce’s exact language. The Brandeis administration threatens him with academic probation in hopes he will cancel his performance so that student protests do not fall on the same night that a wealthy alum, who has criticized student protests including Ford Hall 2015, visits campus.”

“At the climax of the play Ron performs and students protest. . . . In the play, his comedy performance is a direct challenge to the Brandeis administration. ‘If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?’ he says.”

The Controversy 

This from Sopan Deb at the New York Times: “Brandeis University canceled an upcoming play about the comedian Lenny Bruce after some students and faculty expressed outrage about its content, the school announced on Monday.”

“The play, called “Buyer Beware,” was written by Michael Weller, an alumnus of the school and a playwright with a body of work that includes 1971’s “Moonchildren.” “Buyer Beware” was supposed to go on stage this month, but according to a statement from Brandeis, faculty started raising objections last summer.”

“Theater faculty members, the statement said, ‘felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming.’ . . .”

→ More from The Brandeis Hoot: “Rather than put on a performance of ‘Buyer Beware,’ the School of Creative Arts will offer a course in the spring ‘devoted to the challenging issues Michael’s work evokes.'”

Brandeis University’s statement related to the Creative Arts Award and ‘Buyer Beware’

“In January, Brandeis University will proudly present Michael Weller ’65 with the Creative Arts Award to celebrate his significant body of work, which includes more than 40 works for the theater, including “Moonchildren” and “Loose Ends,” and such films as “Ragtime” and “Hair.” Mr. Weller will add this award to an already impressive list of honors, including an Academy Award nomination, an NAACP Outstanding Contribution Award and a Drama Desk Award.”

“Last year, Mr. Weller was hosted by the theater department on campus, where he conducted research in the Lenny Bruce archives and engaged with students, faculty, administration, staff and maintenance personnel. He drew on this research to draft a script for a new play titled “Buyer Beware,” named after Lenny Bruce’s celebrated recording. Originally, the play was part of the theater department’s performance schedule for this November.”

“After receiving a draft script of ‘Buyer Beware’ in early July, theater faculty members considered the challenging issues it raised. They felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming. In early September, Mr. Weller and faculty discussed possible dates in February for the production of the play. Mr. Weller was also informed about the creative arts faculty’s decision to design a team-taught course around the play and other provocative works of art in the spring semester, which would accompany the production of the play. However, it was the playwright’s sense, in his own words, “that rehearsals of the play, and growing sentiment among some students in the theater department, might not be conducive to the creative atmosphere desired for a premiere presentation of a new work,” and so Mr. Weller made the decision to produce it elsewhere in a professional venue, rather than at Brandeis.    

“While the play will not be performed on campus because of Mr. Weller’s decision to produce it professionally elsewhere, a course will be offered this spring and is currently being designed by faculty. It will allow Brandeis faculty to do what they do best — engage in rigorous educational work — by devoting a full semester to analyzing and openly discussing provocative works of art that may cause discomfort, including the legacy of Lenny Bruce. The course will explore a broad range of artistic genres, including visual art, theater, film, music and literature, with the help of experts and visiting artists as well as Brandeis faculty. . . .”

“The university will be honored to celebrate Mr. Weller’s artistic achievements at the Creative Arts Award ceremony on January 23rd.”

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