FAN 43 (First Amendment News) The ACLU making (more) First Amendment news

If you venture to San Francisco’s famed City Lights Bookstore you will see a big notice in the window; it is the same one you see above. Why this notice? Because more than all the rest Albert Bendich came to the First Amendment rescue of Lawrence Ferlinghetti (the noted poet, publisher & bookseller) a half-centuryor so ago. Sure there were others — namely Jake Ehrlich and  Lawrence Speiser — but the one who made the biggest difference was a young Boalt Hall graduate and ACLU lawyer, Al Bendich.

Lawrence Ferlinghetti

Lawrence Ferlinghetti

The history of HOWL (that great Beat poem) and the right to publish and sell it were very much shaped by the work Bendich did when a case involving the poem went to trial in 1957. The verdict in this obscenity case was a grand victory for poetry and publishing. And it was a proud moment for the ACLU in its successful defense of political poetry — that rebellious kind of verse that knocks the jambs off the doors of outmoded mores.

Later this week Ferlinghetti will post a statement on the City Lights blog to honor his former lawyer and longtime friend. And today the New York Times has an obituary by Margalit Fox about the remarkable life of this remarkable man — a skilled lawyer, a thoughtful scholar, and a man with a philosopher’s eye for the longview of life and law. Ferlinghetti is quoted in that obit. And one more thing: Al was a kind and generous man who was secure enough to be quite humble.

If we as citizens don’t know what our government is doing, how can we have an opinion of it and how can we call ourselves self-governing? What is the appropriate relationship for us as citizens and the people we elect as our government? Are they our servants or are we their servants? The First Amendment says Congress shall make no law abridging the freedom of speech. There’s a reason for that absolute. — Al Bendich (2014)

In ACLU offices across the country the name “Bendich” is now being explained to a new generation of civil liberties activists. Long may it be remembered.

Al Bendich’s ACLU work on free speech, privacy, and equality may be fifty years old, but it laid the foundation for the rights we have now.Abdi Soltani (Jan. 12, 2015)

See also Sam Whiting, “Albert Bendich, attorney and defender of free speech, dies,” SF Gate, Jan. 13, 2015

ACLU’s Laura Murphy leaving

Laura W. Murphy, First Amendment freedom fighter.

Laura W. Murphy

The American Civil Liberties Union has announced that “Laura W. Murphy will step down as director of its Washington legislative office effective January 31, 2015. After serving 17 years as the director of that office, Murphy plans to reestablish her private consulting business, Laura Murphy & Associates. She will also return to school to as a student at Georgetown University’s Institute for Transformational Leadership.”

Commenting on Murphy’s leave, ACLU Executive Director Anthony D. Romero said: “Laura’s tremendous work on the First Amendment, national security, racial justice, and criminal justice reform has earned her a reputation as one of the most tenacious and effective advocates for civil liberties in the nation. . . .”

Indeed, Laura has been a stalwart defender of free speech freedoms, which is never easy, especially in these highly charged ideological times. May her replacement continue that proud ACLU tradition with that same kind of passionate commitment that was her calling card. Meanwhile, may some of the best of Laura’s life ride be yet to come. Ride on!

Oregon ACLU’s Dave Fidanque to step down 

“In his 20 years as Executive Director of the ACLU of Oregon, and his 31 years on the ACLU staff, he has been instrumental in protecting and advancing freedom in this state and nationwide.” Candace Morgan (2013)

David Fidanque has served as the director of the American Civil Liberties Union of Oregon since 1993. He joined the ACLU in 1982. Prior to that he worked as a reporter for KEZI in Eugene and before that for Congressman Jim Weaver from 1977-1981. As noted in a Bend Bulletin news story, Fidanque will step down as director on March 31, 2015.

David Fidanque

David Fidanque

For those who know him, Fidanque has long led the charge on everything from gay rights to the rights of the criminally accused. In March 2013, he received the ACLU of Oregon’s highest honor, the E.B. MacNaughton Civil Liberties Award, this in commemoration of his 20th anniversary as Executive Director.

Like Laura Murphy, Fidanque is a staunch defender of free speech freedom and has worked hard to champion free expression rights not only under the First Amendment but also under the Oregon Constitution (see e.g. State v. Robertson).

In 1986 the Oregon ACLU, under Fidanque’s direction, challenged the state’s obscenity law as applied to the owner of an adult bookstore. The claim was brought under Article I, section 8 of the Oregon Constitution. After hearing the case, the Oregon Supreme Court unanimously ruled that the law challenged violated the state constitution. Consistent with the ACLU arguments advanced in the case, the Court ruled: “In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally ‘obscene.'” The case was State v. Henry (1987).

Thereafter, in 1994 and 1995 there were proposed ballot measures to reverse Henry and other rulings. Fidanque and the Oregon ACLU successfully fought back those measures.

Still, an array of civil liberties issues continue to keep its director and the Oregon ACLU quite busy. Is Oregon the land of progressive promise? “That all depends on the issue,” Fidanque commented in a recent interview. That said, he welcomes the challenge and returns time and again to the ring to fight another day like a determined Rocky Balboa. I wish him well in all his future bouts.

 See also Anna Staver, “Longtime director of Oregon ACLU to retire,” Statesman Journal, Jan. 12, 2015

* * * *

What Al Bendich did as a young ACLU lawyer representing howling poets and publishers like Ferlinghetti and Ginsberg continues to serve as a model and inspiration for our current advocates, a model embraced by our tried and true First Amendment champions Laura Murphy and David Fidanque. Defending the freedom of speech of rebel poets and other free spirits will always be part of the ACLU’s core mission. Moving into the future, we will remember Al as we carry on with his work. – Susan Herman, President, ACLU

ACLU Lawsuit: PA Law to Silence Offenders’ Speech Violates First Amendment 

The Pennsylvania ACLU has gone to federal court to contest the state’s Revictimization Relief Act, which authorizes crime victims and prosecutors seeks a civil injunction to prevent speech that a could cause “a temporary or permanent state of mental anguish” to the victim or otherwise “perpetuate the continuing effect of the crime” on the victim.

The law came in response to a recorded commencement speech given by Mumia Abu-Jamal, who was sentenced to life in prison for murdering Philadelphia police officer Daniel Faulkner.

ACLU Complaint

ACLU Motion for Preliminary Injunction

The ACLU of Pennsylvania complaint was filed “on behalf of journalists, news outlets, advocacy organizations, and community leaders who were formerly incarcerated, seeking to block enforcement of a recently passed state law that stifles the free speech rights of thousands of individuals and organizations.”

→ Counsel for Plaintiffs: The plaintiffs are represented by Witold Walczak and Sara Rose of the ACLU-PA, Amy Ginensky and Eli Segal of Pepper Hamilton’s Philadelphia office, Tom Schmidt and Tucker Hull of Pepper’s Harrisburg office, and Seth Kreimer of the University of Pennsylvania Law School. Prison Legal News is also represented by Lance Weber and Sabarish Neelakanta of the Human Rights Defense Center.

ACLU files amicus brief in judicial campaign solicitation case — some “past leaders” file opposing brief

The battle between the current ACLU counsel and some its past luminaries continues.

On the one hand, the National ACLU has weighed in on Williams-Yulee v. The Florida Bar by filing an amicus brief in the case. Robert Corn-Revere of Davis Wright Tremain is the counsel of record.

On the other hand, and as in some past campaign finance cases (see my book with David Skover, When Money Speaks), an amicus brief has been filed on the other side by Norman Dorsen, Aryeh Neier, Burt Neuborne, and John Shattuck. In that brief they list themselves as “Past Leaders of the American Civil Liberties Union.” Burt Neuborne (of the Brennan Center, which also filed its own amicus brief on behalf of the Respondent, see below) is counsel of record.

 An amicus brief in support of the Petitioner was also filed by the Thomas Jefferson Center for the Protection of Free Expression.

 Briefs filed in support of Respondent Florida State Bar were filed by, among others, the following groups: The American Bar Association, the Conference of Chief JusticesPublic Citizen, Professors of Law, Economics, and Political Science (including Prof. Lee Epstein), and Professor Jed Shugerman (author of The People’s Courts: Pursuing Judicial Independence in America ).

 The Brennan Center for Justice also filed an amicus brief in support of the Respondent on behalf of the following groups: Common Cause, the Center for Media and Democracy, Lamda Legal Defense & Education Fund, Justice at Stake, the Campaign Legal Center, and Demos.


Oral arguments in sign ordinance case

Reed v. Town of Gilbert

UnknownIssue: Whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

Transcript of oral argument here.

  1. Lyle Denniston, “If a law turns out to be “silly” . . .,” SCOTUSblog, Jan. 12, 2015
  2. Adam Liptak, “Justices Uneasy With Ordinance Limiting Town’s Signs,” NYT, Jan. 12, 2015
  3. Ruthann Robson, “Supreme Court Hears Oral Arguments Challenging Town’s Sign Ordinance,” Constitutional Law Prof Blog, Jan. 12, 2105
  4. Robert Barnes, “At Supreme Court, signs are clear that justices have doubts about Ariz. town’s law,Wash. Post, Jan. 12, 2015

 See also, Eugene Volokh, “Why Reed v. Town of Gilbert isn’t really a ‘religious rights’ case,Volokh Conspiracy, Jan. 11, 2015

Heritage to host event on judicial campaign solicitation case

In a little over a week, the Heritage Foundation in Washington, D.C. will host an event titled Judicial Elections and the First Amendment — Williams-Yulee v. The Florida Bar

The event will feature:

Hans A. von Spakovsky a Senior Legal Fellow at Heritage, will host and moderate the event.

Here is a description of the upcoming event:

On January 20, the U.S. Supreme Court will be hearing oral arguments in Lanell Williams-Yulee v. The Florida Bar. At issue is whether a ban on solicitation of campaign donations by judicial candidates in state elections in Florida violates the First Amendment rights of the candidates. Does Florida have a compelling interest in imposing such a ban to preserve the appearance of impartiality of its judges? Is it necessary to ensure judicial independence and maintain public confidence in the judicial system? Does this ban on solicitation violate the First Amendment rights of candidates to engage in political speech and political activity? Does the soliciting of campaign donations involve core political speech? In a post-argument briefing, two First Amendment experts who filed amicus briefs in the case, along with the former Chief Justice of the Indiana Supreme Court, will discuss these issues as well as the oral arguments conducted that morning before the Supreme Court. Moderating the panel will be a former FEC commissioner.

For more information, go here.

Is the First Amendment on the side of a pro football team’s name?

Lyle Denniston writing for the Constitution Daily at the National Constitution Center:

For nearly 82 years, a professional football team has called itself the “Washington Redskins,” and it has had trademark protection for almost 48 years for that name and for designs and images based on the name. Now, after spending millions to protect its identity and that series of trademarks, and exploiting those marks to promote its team and maintain and build its fan following, the team is threatened with losing that protection. It believes that, if that happens, it will be punishment for a valuable form of expression, in violation of the First Amendment. [See the article linked above for Lyle’s take on this.]


First Amendment junkies take note: Eugene Volokh and his crew have just launched a Twitter feed just for free-speech-related posts!

Here’s Eugene’s pitch: “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 are already in the news — @VolokhSpeech is your ticket.”

Think of it: soon we’ll be able to track the 1-A world on our Smart watches.  It’s about time!

New & Forthcoming Books 

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First Amendment News

First Amendment Law Review to publish symposium on net neutrality (video on Oct. 2014 conference here)

Last Scheduled FAN Post: # 42 — “Tribute to Al Bendich (1930-2015) — the ACLU lawyer who made the difference in the HOWL & Lenny Bruce cases

Last FAN Post: # 42.1 — “High Court denies cert in campaign finance case

Next FAN Post: # 44, Wednesday January 21, 2015

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