FAN 17 (First Amendment News) — New Bio Reveals How Scalia Helped to Save a PBS Station


A soon to be released 650-page biography of Antonin Scalia reveals some interesting tidbits about the Justice and his career as it relates to free speech. The book is titled Scalia: A Court of One (Simon & Schuster, June 10, 2014). Bruce Allen Murphy, the Fred Morgan Kirby Professor of Civil Rights at Lafayette College, is the author of this heavily-researched and well-documented new biography. Professor Murphy’s previous judicial biographies include The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982), Fortas: The Rise and Ruin of a Supreme Court Justice (1988), and Wild Bill: The Legend and Life of William O. Douglas (2003).

Bruce Allen Murphy

Bruce Allen Murphy

Tellingly, the yet-to-be-distributed book has already been praised and criticized. That said, Murphy’s biography affords a new opportunity to revisit the history of Justice Scalia’s interaction with the First Amendment, both before and during his career on the Court. Readers of this column will recall Scalia’s recent call for law schools to place more emphasis on teaching the First Amendment. Recall, too, the Justice’s repeated criticism of the holding in New York Times Co. v. Sullivan.

Turning back the biographical clock, and as Professor Murphy recounts it, in January of 1971 Antonin Scalia (he was 35) went to work as general counsel for the Office of Telecommunications Policy. During Scalia’s tenure there President Nixon “became convinced that the national news and public affairs division of the Public Broadcasting Service . . ., which depended on government funding, was an ‘enemy’ group staffed by relentless liberal journalists. Nixon decided to try to take control of this agency, or, if he could not, to destroy it by cutting off its funding.”

Sometime later, word reportedly came down from the Nixon White House to “get a particular PBS station off the air.” According to an OTP official then working there, “Nino said, ‘hell, write back a memo that says it’s illegal.’ While Scalia acknowledged that [the purported illegality] was not true, he added, ‘Hell, they don’t know that.'” Subsequently, the OTP official “told a reporter that he did precisely what Scalia recommended and the White House soon dropped the issue.”

To be sure, there is more to this story, but I refer readers to the Murphy’s biography to learn how the matter ultimately played out, politics and all.

Before leaving the Murphy biography, readers might be interested to know that he devotes a chapter (#8) to the originalist debate over the meaning of the First Amendment as interpreted by then Circuit Judges Robert Bork and Antonin Scalia in the case of Ollman v. Evans (1984).

More on Justice Scalia

Speaking of Justice Scalia and free speech, the following is a list of his First Amendment free expression majority opinions authored during his tenure on the Roberts Court. Notice the vote margin when he is assigned to write for the Court.

→ Aside: Coming in 2015: A play titled “The Originalist

Federal Court Affirms Right to Videorecord Police 

Seth J. Hipple

Seth J. Hipple

The case is Gericke v. Begin (1st Cir. May 24, 2014), which was authored by Judge Kermit Lipez for a three-judge court. Seth J. Hipple, a criminal defense lawyer, successfully argued the case for the Appellee Carla Gericke.

Here are the relevant facts as stated by Judge Lipez at the outset of his opinion: “This case raises an important question about an individual’s First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire’s wiretapping statute,” disobeying a police officer, and obstructing a police officer. Ms. Gericke was not tried since the prosecutors declined to pursue the matter. Gericke then brought a 42 USC 1983 action against the police department and various officers for violating her First Amendment rights. The defendants argued that they had qualified immunity. Their argument: “there was no clearly established right to film the traffic stop.”

Relying on a 2011 First Circuit precedent authored by Judge Lipez, the Court recognized a First Amendment right to film a traffic stop: “The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure — for example, a command that bystanders disperse — that would incidentally impact an individual’s exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.”

Later, Judge Lipez added: “Importantly, an individual’s exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place. This conclusion follows inescapably from the nature of the First Amendment right, which does not contemplate self-censorship by the person exercising the right.”

Notably, since “no order to leave the area or stop filming was given,” Judge Lipez stressed that the Court “need not analyze whether a reasonable officer could have believed that the circumstances surrounding this traffic stop allowed him to give such an order.”

[HT/Eugene Volokh]

Anti-Sex Trafficking Bill & Free Speech 

This from the national ACLU’s Washington Legislative Office (May 20, 2014): “The House of Representatives [recently considered a  bill titled “Stop Advertising Victims of Exploitation” or the SAVE Act of 2014] that would result in severe unintended consequences for free speech online. We are understandably concerned. The measure aims to target the deliberate commercial promotion of either coerced or underage prostitution ­– both of which are, rightly, serious federal crimes – but would unfortunately go much further.”

Last week the bill was approved by a 392-19 vote in the House.

The bill, argues the ACLU, “would unintentionally shut down lawful speech.” It would also “result in a ‘notice-and-takedown’ regime where both law enforcement and members of the public will notify platforms that a particular ad looks troubling, and risk-averse advertisers will immediately take it down without any due diligence to make sure it is, in fact, illegal. The most risk-averse will ban certain ads — and other speech — wholesale, just to be safe.” 

The Senate has yet to take up the bill.

Colorado ACLU Challenges Proposed Panhandling Ordinance

The ACLU of Colorado is contesting a proposed Boulder ordinance that would restrict panhandling at places such as ATMs, outdoor play grounds, pay parking stations, and outdoor dinning areas. In a memo to the city council, Mark Silverstein (Legal Director) and Barry Satlow (Chair, Boulder County Chapter) argue that “the overly broad proposed ordinance would make it a crime to engage in peaceful, polite, non-threatening expression that poses no risk to public safety and is squarely protected by the First Amendment and Article II, Section 10 of the Colorado Constitution. The proposed ordinance,” they add, “is a content-based restriction of expression. It regulates requests for money but not other types of solicitation.”

The ACLU memo cited a pending ACLU case “in which the federal court granted a temporary restraining order against a portion of a Grand Junction ordinance restricting panhandling and an ACLU case in Idaho in which a federal court recently issued a preliminary injunction against a Boise ordinance that is similar to the Boulder proposal.”

Councilwoman Suzanne Jones told the Daily Camera that she fears that these panhandling laws “will just anger the ACLU and the folks who want to see us do more for the homeless without meaningfully doing something about the problems with the transient population. I worry it’s a lose-lose. We’re hearing from two sides. I worry this inlfames one side without satisfying the other.”

“Amending the First Amendment” — Upcoming Event 

On June 2nd at 2:00 p.m. the Heritage Foundation will host a panel discussion entitled “Amending the First Amendment: Silencing Free Speech?” Those participating in the event are:

Here is a description of the event: “On June 3, the Senate Judiciary Committee will hold a hearing to discuss the U.S. Supreme Court’s decision in McCutcheon v. FEC and a proposed constitutional amendment, S.J.Res. 19. This unprecedented amendment would change the First Amendment and overturn a long line of Supreme Court decisions governing campaign finance restrictions. What was the McCutcheon decision about and why do some want to overturn it? Is this constitutional amendment part of a coordinated effort to stifle criticism of the government and elected officials? Does limiting the amount of money that can be raised and spent on political activity restrict free speech?”

→ Go here to RSVP.

New Book on National Security & Free Speech


Chris Finan

Christopher Finan,  the president of the American Booksellers Foundation for Free Expression and the author of From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America (2007), has edited a new and important book titled National Security and Free Speech: The Debate Since 9/11. The topics covered in the book include:

  • The Fight Over Reader Privacy
  • Gags and Government Secrecy
  • Are Whistleblowers Dangerous?
  • Government Surveillance
  • Prosecuting Terrorist “Supporters”
Contributors to the 370-page collection of primary materials include:
  • Floyd Abrams
  • Steven Aftergood
  • John Ashcroft
  • Hillary Rodman Clinton
  • Russ Feingold
  • Adam Liptak
  • Richard Posner

The anthology contains an informative and balanced introduction by Finan, which thoughtfully summarizes the history of the fight to protect free speech in perilous times. Thanks to the public-mindedness and generosity of IDEBATE Press, the book is available for free to U.S. educational institutions (also available for purchase on Amazon and elsewhere).

→ BTW: Last week, at an event at the Newseum in Washington, D.C., Chris Finan accepted a First Amendment Award from the Hugh M. Hefner Foundation, this for his National Security and Free Speech book.

Volokh Conspiracy Tweets 1-A Posts

This from the folks at the Volokh Conspiracy blog: “If you’d like to follow just our free-speech-related posts, you can now do that, using@VolokhSpeech. Of course, you can also follow all our posts at @VolokhC. But if you’re particularly interested in our posts about free speech — which often report on little-covered cases or disputes, as well as commenting on other free speech disputes that already in the news — @VolokhSpeech is your ticket.”

Quick Hits

Two Press Stories

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Last FAN (# 16.3): Unanimous Judgments: The Roberts Court’s Record in First Amendment Free Expression Cases

Last Scheduled FAN (#16): The Move to Amend & Leahy’s Upcoming Senate Hearing

Next Scheduled FAN: Wednesday, June 4th.

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