FAN 51 (First Amendment News) Journalists, Scholars & Others Pay Tribute to Anthony Lewis

Anthony Lewis . . . created a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership. David Cole (May 9, 2013)

Tony Lewis (credit: NYT)

Tony Lewis (credit: NYT)

Anthony Lewis (1927-2013) — reporter, columnist, educator, Pulitzer Prize-winning author, and scholar. He was all of those things and more. I grew up on Tony Lewis (he was born Joseph Anthony Lewis). He was right there, in the New York Times, which in those days you couldn’t get on the Internet – there was none. If you were outside New York you were lucky to find a hard copy at a good hotel or news- stand.  A Lewis column was a staple of one’s diet for those who followed the Court and related matters. And what a corpus of work he set his name to — some 5,600 some articles and columns and five books. That is reason enough to single out the Lewis byline.

→ See Adam Liptak, “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” NYT, March 25, 2013

Happily, the Missouri Law Review recently paid tribute to Tony Lewis in a symposium issue with 13 contributors, several of whom once worked with him and were also close friends of his. (Note: The links below may not open in Safari but should open in Firefox and Chrome.)

  1. Foreword: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis, by Richard Ruben
  2. Keynote: Anthony Lewis and the First Amendment, by Adam Liptak


  1. Anthony Lewis: What He Learned at Harvard Law School, by Lincoln Caplan
  2. Anthony Lewis: Pioneer in the Court’s Pressroom, by Lyle Denniston
  3. The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat, by Linda Greenhouse
  4. Press Freedom and Coverage in the U.S. and Kosovo: A Series of Comparisons and Recommendations, by Ben Holden
  5. A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law, by Heath Hooper & Charles N. Davis
  6. Anthony Lewis, by Dahlia Lithwick
  7. Legal Journalism Today: Change or Die, by Howard Mintz
  8. Institutionalizing Press Relations at the Supreme Court: The Origins of the Public Information Office, by Jonathan Peters
  9. Setting the Docket: News Media Coverage of Our Courts – Past, Present and an Uncertain Future, by Gene Policinski
  10. As Today’s Tony Lewises Disappear, Courts Fill Void, by David A. Sellers
  11. Making Judge-Speak Clear Amidst the Babel of Lawspeakers, by Michael A. Wolff

Tony Lewis’ Fantasy

You lead me to tell you my fantasy. A happy fantasy. [It is this:] our next President does the equivalent of what Jefferson did in his first inaugural when he was so hated by the Federalists and began his inaugural speech by saying, “We are all Republicans – we are all Federalists.” The next president sets out to say two things. One, there’s nobody unpatriotic here. We’re all Americans together. And two, this administration is going to be an administration of law; where law has been rolled back, we’re going to bring it to the fore again. This country is a government of laws, not men. That’s my fantasy. Will it happen? I doubt it. But I sure think it ought to. (Sept. 12, 2006 Interview, Walter Lippmann House, Cambridge, Mass.)

Go here for a C-SPAN interview I did with Tony in connection with his book Freedom for the Thought That We Hate: A Biography of the First Amendment (2001).

Media Groups Challenge Claim for Profits in the Defamation Case

Jesse Ventura

Jesse Ventura

The case is Ventura v. Kyle, which is presently before the United States Court of Appeals for the Eighth Circuit. The matter involves a defamation lawsuit brought in federal court by Jesse Ventura (former governor of Minnesota and Navy veteran) against HarperCollins concerning its publication of the book American Sniper by Chris Kyle. Last summer, a jury awarded Ventura $1.8 million from the Kyle estate. The case is now on appeal.

Yesterday Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:

  1. The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
  2. The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate

“[T]he law of libel,” they maintain, has “been clear that while damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants. That proposition has rarely been questioned until this case. Indeed, we know of only one case, decided more than 65 years ago, that is directly on point: Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted in constitutional concerns and the common law relating to libel, the Hart decision holds that a claim for profits may not be asserted in the defamation context. We are aware of no case before or after Hart to the contrary.”

The briefs concludes: “Where, as here, there was no showing of evil intent sufficient to satisfy [Minnesota’s punitive damages law], where, as here, an award of profits can serve no deterrent or punitive purpose, and where, as here, the First Amendment’s abhorrence of exorbitant damage awards untethered to a plaintiff’s true injury is clearly in play, this Court should not be the first to sanction an unprecedented award of a book’s profits.”

 As noted in their amicus brief, the issue of an award of profits in defamation cases is addressed in Dan Dobbs, Law of Remedies: Damages – Equity – Restitution (2d ed.) (“One reason to deny the restitution claim is the threat it presents to free speech. Another is the difficulty of apportioning the publisher’s profit between his own effort and investment and the defamatory material.”)

Geoffrey Stone Weighs in on Oklahoma Expulsion Controversy 

The racist chant:

There will never be a nigger at SAE
There will never be a nigger at SAE
You can hang him from a tree
But he’ll never sign with me
There will never be a nigger at SAE

Professor Stone’s comments from the Huffington Post:

Professor Geoffrey Stone

Professor Geoffrey Stone

“Needless to say, such language is abhorrent. But the University of Oklahoma cannot constitutionally expel the students for this expression. The Supreme Court has made it quite clear that public universities cannot constitutionally discipline their students for speech merely because it offends the university’s sense of decency.”

“. . . [A]s the Court made clear in HealyPapish, and other decisions, a public university generally has no more authority to regulate offensive speech on a campus and a city has to regulate offensive speech on a city street. I join President David Boren and the University of Oklahoma in denouncing the racist rant of these students. But to expel students for what they say and think – however odious their words may be – violates the very constitutional principles upon which the University of Oklahoma was founded.”

“This was a great, if difficult, teaching moment. It is a shame that President Boren the University of Oklahoma taught their community the wrong lesson.”

See also the two op-eds listed below:

Columbia’s Lee Bollinger Speaks on Campus Free Speech

President Lee Bollinger

President Lee Bollinger

“Columbia University President Lee Bollinger spoke on WNYC’s the Brian Lehrer Radio Show, which discusses prominent national and local issues surrounding politics and life, today to discuss the university’s first freedom of expression awards, the Columbia Global Freedom of Expression Prizes, and other issues surrounding free speech. According to Bollinger, the prize recognizes ‘really great decisions around the world by judicial bodies that support freedom of expression.'” In her article for The Spectrum Irene Kao also reported:

“Bollinger also addressed his opinion about limiting free speech on college campuses: ‘In my view, students on a campus should have the same rights that they would have in the public sphere. All the First Amendment protections that we have developed for speech, including highly offensive speech like neo-Nazi speech, should be protected on college campuses. So any notion of political correctness, that any time you’re offended by something that speech can be prohibited, that’s completely unacceptable and inconsistent with academic freedom.'” (see the full story for additional comments from President Bollinger.)

 Go here to hear the full radio show.

Lincoln Caplan: “Can free speech wreck the American experiment?”

Lincoln Caplan (the author of the widely acclaimed The Tenth Justice) has just published an article in The American Scholar. The piece is titled “The Embattled First Amendment: The Supreme Court is Interpreting Free Speech in New Ways that Threaten Our Democracy.”

The first sentence of his article is quoted above. Here is an excerpt from his 5,800-word essay:

However sacred the idea of free speech remains for us today, we should recognize that its most fervent champions are not standing up for mistrusted outliers, such as Holmes had in mind, or for the dispossessed and powerless. Today’s advocates do the bidding of insiders—the super-rich and the ultra-powerful, the airline, drug, petroleum, and tobacco industries, all the winners in America’s winner-take-all society. In a country where the gap between the haves and have-nots has grown so extreme that both political parties now pay lip service to populism, the haves have seized free speech as their cause—and their shield.

→ Note: Mr. Caplan was one of the contributors to the Missouri Law Review symposium on Anthony Lewis (see item 3, above).

Forthcoming Book: The Silencing: How the Left is Killing Free Speech

Kirsten Powers

Kirsten Powers

Coming this May Regnery Publishing will release a new book by Kirsten A. Powers, an American political pundit, analyst, USA Today columnist, and a Fox News contributor. Here is a advance blurb for the book:

Lifelong liberal Kirsten Powers blasts the Left’s forced march towards conformity in an exposé of the illiberal war on free speech. No longer champions of tolerance and free speech, the “illiberal Left” now viciously attacks and silences anyone with alternative points of view. Powers asks, “What ever happened to free speech in America?”

See also: Elizabeth Price Foley, Defending Citizens United: How Campaign Finance Laws Restrict Free Speech (Praeger, October 31, 2015)

(credit: The Daily Beast)

(credit: The Daily Beast)

Corn-Revere on History of Book Burnings 

First Amendment lawyer Robert Corn-Revere offers a concise and informative account of the history of book burnings in a new article entitled “Bonfires of Insanity: A History of Book Burnings From Nazis to ISIS.” The piece was recently published in The Daily Beast. The article takes its conceptual cue from ISIS members’ burring of the Mosul public library along with some 8,000 rare old books and manuscripts. Here are a two excerpts:

Historical examples of book burning are too numerous to list in a short article, but they date back to antiquity. The Babylonians and their allies burned the library of the scholar King Ashurbanipal in 612 BC when they sacked the Assyrian capital of Nineveh. In 213 BC Chinese Emperor Qin Shi Huang ordered the burning of all history and philosophy books from states other than Qin (in addition to burying intellectuals who disputed state dogma). And the works of the Greek philosopher Protagoras were gathered and burned in the marketplace in Athens because he dared to question whether the gods exist. . . . 

The religious conflicts that divided Europe in the Middle Ages (and beyond) continued the tradition of book burning. In 1242, Pope Gregory IX prevailed on King Louis IX to destroy all copies of the Talmud in Paris. About 12,000 volumes were burned after being “tried” by the crown and “convicted.” In 1401, the English Parliament under King Henry IV passed a law entitled “On the Burning of Heretics” that required the collection and public burning of heretical works. In the decade before 1500, the Spanish Inquisition ordered the wholesale burning of Jewish and Arabic texts. In 1499, for example, the Archbishop of Toledo publicly burned 5,000 Arabic manuscripts in Granada’s public square. By order of the Pope, Martin Luther’s German translation of the Bible was burned in 1624 in those parts of Europe controlled by Catholics (although for his part, Luther himself burned Papal decrees).

Check out the full article, which is a treasure trove of historical information re the history of book burnings.

Hate Speech Discussed at First Amendment Salon

Greg Lukianoff, Lucy Dalglish & Christopher Wolfe

Greg Lukianoff, Lucy Dalglish & Christopher Wolf

The fourth First Amendment salon was held in Washington, D.C. this past Monday with a live webcast to New York City and another to the Floyd Abrams Institute at Yale Law School. The topic: “Hate Speech – From Parisian Cartoons to Cyberspace to Campus Speech Codes.” Dean Lucy Dalglish moderated the discussion between Christopher Wolf and Greg Lukianoff.

The discussion was lively and covered a wide range of “hate speech” topics, both domestic and foreign. Some of the many of those in attendance were Floyd Abrams, Sandra Baron, Gerry Barron,  Thomas Curley, Victor Kovner, Ronnie London, Michael Macleod-Ball, Tony Mauro, Gene Policinski, David Savage, Stephen Wermiel, and Mary Ann Zimmer.


Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. on 8 v. Bowen
  2. Kagan v. City of New Orleans
  3. Clayton v. Niska
  4. Pregnancy Care Center of New York v. City of New York 
  5. City of Indianapolis, Indiana v. Annex Books, Inc.
  6. Ashley Furniture Industries, Inc. v. United States 
  7. Mehanna v. United States
  8. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  9. Vermont Right to Life Committee, et al v. Sorrell

In Memoriam: Herald Price Fahringer (1928-2015)

“Freedom is only meaningful if it includes all speech, no matter who is offended by it,” he said. “It would be a hazardous undertaking for anyone to start separating the permissible speech from the impermissible, using the standard of offensiveness.

“The freedom guaranteed in the First Amendment is indivisible. You can’t take it away from Larry Flynt and keep it for yourself. The real issue of this case is: Are we afraid to be free?” — H.P. Fahringer

Source: Sam Roberts, “Herald Price Fahringer, a Defender of Free Speech, Dies at 87,” NYT, Feb. 19, 2015

New Article Examines Justices’ Voting Behavior in First Amendment Cases

Adam Sean Feldman & Elli Menounou, “Words that Matter: Predicting Persuasive Briefs in the United States Supreme Court,” SSRN (March 7, 2015)

Abstract: The authors use use “quantitative text classification to generate models of Supreme Court Justices’ voting behavior in First Amendment cases. We then propose a multidimensional scaling procedure to assess the justices’ preferences through language-based modeling. We utilize a dataset composed of five justices’ votes – Justices Scalia, Rehnquist, O’Connor, Stevens, and Kennedy, over a seventeen term period from 1987 through 2004. With this data, we show how focusing on inputs to judicial decision-making such as litigants’ briefs necessitates a new means of assessing judicial attitudes. In particular, we show that with the addition of a second dimension of voting in the First Amendment context with a rights/restrictions axis, we can better understand the justices’ preferences. The models in this paper achieve near 80% predictive accuracy of the justices’ votes which far surpasses the prediction accuracy of models based on ideology scores commonly used in judicial behavior literature.”

Forthcoming Books

  1. Jermey Geltzer, Dirty Words & Filthy Pictures: Film and the First Amendment (University of Texas Press, December 15, 2015)
  2. Paul Rosenzweig & Timothy J. McNulty, Whistleblowers, Leaks, and the Media: The First Amendment and National Security (American Bar Association, August 2015)
  3. Alex Brown, Hate Speech Law: A Philosophical Examination (Routledge, March 25, 2015)
  4. David R. Dewberry, The American Political Scandal: Free Speech, Public Discourse, and Democracy (Rowman & Littlefield, August 7, 2015)

New & Forthcoming Scholarly Articles

Prof. Marc J. Blitz

Professor Marc J. Blitz

  1. Marc Jonathan Blitz, James L Grimsley, Stephen E. Henderson  & Joseph T. Thai, “Regulating Drones Under the First and Fourth Amendments,” William & Mary Law Review (Forthcoming)
  2. Laura E. Little, “Laughing a Censorship,” Yale Journal of Law and the Humanities (Forthcoming)
  3. Caroline Mala Corbin, “Exploiting Mixed Speech,” California Law Review Circuit (Forthcoming)
  4. Helen L. Norton , “The Government’s Lies and the Constitution,” Indiana Law Journal (Forthcoming)
  5. Daniel Hay , “Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct,” Vanderbilt Law Review (2015)
  6. Emily Suski, “Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws,” Case Western Reserve Law Review (2014)
  7. Hannah Ryan, “The Half-Hearted Protection of Journalists’ Sources: Judicial Interpretation of Australia’s Shield Laws,” Media and Arts Law Review (2014)

First Amendment Analysis, News, Editorials & Op-Eds

→ NB: Ruthann Robson, “Eighth Circuit Holds Missouri’s ‘Disrupting a House of Worship’ Crime Violates First Amendment,” Constitutional Law Prof Blog, March 9, 2015

  1. Jason Heid, “Revenge Porn Is Protected by the First Amendment,” Front Burner Magazine, March 10, 2015
  2. Editorial, “California Gun Dealers Fire Back in First Amendment Lawsuit Over Gun Photo Ban,” AmmoLand, March 10, 2015
  3. Patrick McNamara, “Tucson Police: Remove ‘dream pods’ from homeless camp by Friday,” Arizona Daily Star, March 10, 2015
  4. Nat Hentoff, “Recusing 1st Amendment from College Campuses,” WND, March 10, 2015
  5. Free speech attorney to speak at Franklin Pierce University Today,” Sentinel Source, March 10, 2015 (re Joseph D. Steinfield)
  6. Editorial, “We must defend free speech,” The (Colorado) Gazette, March 10, 2015
  7. Amy R. Connolly, “Internet Porn Restrictions Rile First Amendment Watchdogs, Bloggers,” UPI, March 9, 2015
  8. Terrence McCoy, “Threatened by climate change, Florida reportedly bans term ‘climate change,'” Washington Post, March 9, 2015
  9. Editorial, “Decision not to release graphic trial video raising First Amendment questions,” WCVB, March 8, 2015
  10. Alia Malek, “DOJ says Ferguson police violated African-Americans’ free speech rights,” Aljazeera, March 4, 2015

Last Scheduled FAN Post, #50: “ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds

Next Scheduled FAN Post, #52, Wednesday, March 18, 2015

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