FAN 62 (First Amendment News) Federal Judge Blasts Liberal Assault on the First Amendment

Chief Judge Loretta Preska (credit: NY Law Journal)

Chief Judge Loretta Preska (credit: NY Law Journal)

She is Loretta A. Preska, the Chief Judge of the United States District Judge for the Southern District of New York. And she has just published an article entitled “Tyranny of the Arrogant, Ignorant and Intolerant: The Liberal Movement to Undermine Free Speech,” which appears in the Touro Law Review (2015). The article derives from remarks she gave at the Madison Award Dinner for the New York City Lawyers Chapter of the Federalist Society, on October 8, 2014. Here are a few excerpts:

“[W]ho is that open enemy today, threatening fundamental American rights that should be cherished and perpetuated? Sadly, it is America herself and the arrogance, ignorance, and intolerance of her universities and politics, which have burst open Pandora’s Box. Somehow academia has become the ‘friend of the liberal’ in- stead of the ‘friend of the people;’ a place, as Mayor Michael Bloomberg noted in his commencement address at Harvard, where a liberal arts education has turned into “an education in the art of liberalism.’

“Modern-Day McCarthyism”

“As bastions of intolerance, universities are promoting a single ideology instead of acting as welcoming, neutral forums for debate. In censoring unpopular viewpoints, they rob the marketplace of ideas of its substance and consequently silence the critical debating prac- tice that our Founding Fathers routinely turned to in ironing out the nation’s most complex issues. Mayor Bloomberg added: ‘There is an idea floating around college campuses — including here at Harvard — that scholars should be funded only if their work conforms to a par- ticular view of justice. There’s a word for that idea: censorship. And it is just a modern-day form of McCarthyism.’ This modern-day McCarthyism has run rampant across college campuses.”

“The most troubling attack on our First Amendment freedom”

“. . . Throughout our history we have seen individuals in positions of power attempting to erode what truly makes America the land of the free. Today, for example, there is the specter of fifty-four Senators trying to amend the First Amendment’s glorious protection of freedom of speech in the name of political correctness. . . . The Left’s recent movement actually to amend the Constitution to allow Congress to limit fundraising and spending on all-important political speech is perhaps the most troubling attack on our First Amendment freedom. Such an amendment would rip Pandora’s Box wide open, for it could have the domino effect of allowing further restrictive amendments so vast, unknown, and alarming, that they would surely awaken Madison from his grave.”

The Dangers of Chilling Speech

“Madison, Hamilton and Jay needed a name that would conjure a sense of public-spiritedness in their plea to ratify the Constitution. Today, chilling speech, in whatever form it takes, tramples on the very spirit of Publius’ appeal. Infringing free speech not only makes us arrogant, ignorant, and intolerant, but it also makes today’s Amer- ica the antithesis of all that our Founding Fathers hoped their nation would be. . . .”

Muslim-American woman forced to remove Hijab sues sheriff 

Ms. Dakroub (right, seated) at Arab-American Civil Rights League press conference

Ms. Dakroub (right, seated) at Arab-American Civil Rights League press conference

According to a report in the International Business Times by Clark Mindock, a “Muslim-American woman in Michigan has filed a federal lawsuit against the Oceana County Sheriff Department for allegedly violating her First Amendment rights when she was arrested earlier this month and forced to remove her hijab. Fatme Dakroub, of Dearborn Heights, said the arrest “was the worst experience of my life.”

“Dakroub was vacationing with her children May 17, when she was pulled over in a rental car. The officer questioned her about a traffic ticket she had received years ago — a ticket she claimed to have paid — before arresting and booking her and forcing her to remove her hijab. . . “

“Three male officers were present during the booking when she was asked to remove the headscarf, said Dakroub, who then requested a female officer to assist her during the process, to no avail. She was led to a holding cell without the garment, where she said she was ridiculed by police. ‘I don’t understand why they had to be so rude and mean,’ Dakroub said. ‘I was being so polite with them and just trying to make them understand how uncomfortable I am.'”

The Arab-American Civil Rights League  filed a complaint in the U.S. District Court in the Western District of Michigan. “The complaint asks for a federal judge to rule that the Oceana County Sherriff’s Department’s practices be deemed unconstitutional under the first amendment. ‘We are asking a federal judge today to take action and to stop this continuous harassment and intimidation and set some policy across the line as to how to deal with individuals with their first amendment rights,’ said Nabih Ayad, the executive director of the ACRL. Dakroub was released from the Oceana County Jail on $150 bail. She is asking for compensatory damages in an amount to be determined at a trial.” (Source here)

See also EEOC v Abercrombie & Fitch (June 1, 2015): the Court holds 8-1 that under Title VII a job applicant can show discrimination without showing employer knew there was a need for an accommodation. The case involved Abercrombie’s refusal to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy.

Nightmare at Northwestern Over — Professor Cleared

Professor Geoffrey Stone

Professor Geoffrey Stone

Professor Geoffrey R. Stone published an important and timely piece in the Huffington Post that recounts two stories of “Academic Freedom Under Siege” at Northwestern University. One of the recent incidents involved “Northwestern University Professor Laura Kipnis [who] wrote a piece in the Chronicle of Higher Education in which she raised important questions about the regulation of student-faculty relationships, the meaning of consent, the procedural irregularities that frequently taint the efforts of colleges and universities to address such issues, and the messy and destructive lawsuits that often follow. . . . Among other things, Kipnis charged that some of the recently enacted campus codes dealing with such matters have had the effect of infantilizing women students.”

Professor Laura Kipnis

Professor Laura Kipnis

So how was her serious critique of the campus speech codes received? This is where things get Orwellian. “In response to this essay, several students at Northwestern staged a protest demanding ‘a swift, official condemnation’ of the article because they had been made to feel uncomfortable by her thoughts on the subject. One woman student went so far as to describe the essay as ‘terrifying.’ Shortly thereafter, a women student who had filed sexual assault charges against a professor at Northwestern filed a Title IX (sex discrimination/sexual harassment) complaint against Kipnis because of the publication.”

“As Kipnis traces in a powerful new article [“My Title IX Inquisition“] published this week in the Chronicle of Higher Education,  for the past several months she has been subjected to a star-chamber proceeding in which outside investigators retained by Northwestern University have sought to determine whether her initial essay somehow constituted unlawful retaliation, “intimidation, threats, coercion, or discrimination” against the student who had previously filed the sexual assault charge against the faculty member at Northwestern.”

Against that horrific backdrop, Professor Stone made two important points:

  1. “What Northwestern should have done in the face of such a complaint was to dismiss it as quickly and decisively as possible and to reaffirm the fundamental right of members of the university community to write, speak, argue, and complain openly and vigorously about matters of public concern. Instead, Northwestern put Kipnis through months of “investigation” for doing nothing more than writing an interesting and provocative article in a journal of considerable repute.”
  2. “In fairness, I have to say that, at least in the Kipnis incident, this is not all Northwestern’s fault. The Department of Education has run roughshod over colleges and universities in recent years by demanding, on pain of loss of federal funds, that these institutions take extreme measures, often inconsistent with basic notions of due process, to deal with complaints of sexual abuse. But this is not much of an excuse, because the Kipnis case was not an instance in which she was accused of sexually abusing anyone. She was accused, rather, of writing an article that upset some students. Turning that into a federal case is beyond the pale.”

Update: Laura Kipnis Is Cleared of Wrongdoing

Laura Kipnis, the Northwestern University professor who became the subject of two Title IX complaints after publishing an essay in The Chronicle Review, has been cleared of wrongdoing by the university under the federal civil-rights law, which requires colleges to respond to reports of sexual misconduct. Ms. Kipnis said in an interview on Sunday that she received two letters Friday night from the law firm Northwestern had hired to investigate both complaints. In each case, the firm judged that the ”preponderance of evidence does not support the complaint allegations.” [source: The Chronicle of Higher Education, May 31, 2015]

High-school teacher forced to resign for discussing Allen Ginsberg poem

David Ilio

David Ilio

In a Daily Beast post, David Freedlander described the plight of David Olio, an award-winning Connecticut high school teacher who had to resign because he discussed one of Allen Ginsberg’s poems in his class.

“It was the kind of moment teachers covet,” wrote Freelander. “An Advanced Placement English class focusing on poetry, and a student brings in a poem that caught his eye, hoping to discuss in the waning moments of the period how the poet uses language in his work.

Mr. Olio, “a 19-year veteran of the South Windsor School District and winner of Connecticut’s highest award for teaching excellence, didn’t know the poem in question, but he took a look and walked the students through it in the remaining time. The poem the student discovered and brought in was “Please Master,” an extremely graphic account of a homosexual encounter published by Allen Ginsberg in 1968 that begins: “Please master can I touch your cheek / please master can I kneel at your feet / please master can I loosen your blue pants.”

“One day after the class,” Freelander added, “Olio was placed on indefinite, unpaid leave by the district. Seventy-two hours later, the district began termination proceedings against him. Three weeks after that, he agreed to resign.” [Here again, there is more to this story and readers are urged to read Mr. Freelander’s full account.]

→ See also CNN video here.

→ Video of Mr. Olio teaching one of his earlier English classes in which he leads the class in a discussion of Toni Morrison’s Beloved (from the Teaching Channel).

Headline: US tobacco companies drop lawsuit vs FDA over labeling

Fox News is reporting that the “three largest U.S. tobacco companies on Tuesday [June 2, 2015] dropped their lawsuit accusing the U.S. Food and Drug Administration of exceeding its authority by closely monitoring the content of their product labels after the agency said it would reconsider its rules. Altria Group Inc, Reynolds American, Inc. and Lorillard Inc. dismissed their case after the FDA on May 29 said it would review whether to mandate advance approval for label alterations such as changes to logos and background colors, or the use of descriptors such as ‘premium tobacco.'”

The story went on to say that in “their April lawsuit filed in federal court in Washington, D.C., the companies said the 2009 Tobacco Control Act limited FDA authority to pre-approve label changes to two ‘narrow’ circumstances: products claiming to lower tobacco-related risks, or when prior approval is required by regulation. By expanding its oversight to cover how labels look, the FDA violated the tobacco companies’ commercial speech rights under the First Amendment, the complaint said.”

The case is Philip Morris USA Inc et al v. FDA et al, U.S. District Court, District of Columbia, No. 15-00544.

Washington State high court slaps down anti-slapp law

In Davis v. Cox (May 28, 2015) Washington State’s high court was unanimous in striking down an anti-SLAPP law on the grounds that it violated the right of trial by jury protected under article I, section 21 of the Washington Constitution.  The opinion for the nine-member court was written by Justice Debra L. Stephens. There were no separate opinions.

Justice Deborah Stephens

Justice Deborah Stephens

“The legislature,” Justice Stephens declared, “may enact anti-SLAPP laws to prevent vexatious litigants fromabusing the judicial process by filing frivolous lawsuits for improper purposes. But the constitutional conundrum that RCW 4.24.525 creates is that it seeks to protect one group of citizen’s constitutional rights of expression and petition-by cutting off another group’s constitutional rights of petition and jury trial. This the legislature cannot do.”

“We hold,” Justice Stephens added, that “RCW 4.24.525(4)(b) violates the right of trial by jury under article I, section 21 of the Washington Constitution because it requires a trial judge to invade the jury’s province of resolving disputed facts and dismiss-and punish-nonfrivolous claims without a trial.”

The 2010 law was designed to protect ordinary citizens, seeking to participate in discussions about matters of public interest and concern and other First Amendment activities, from the expense and aggravation of meritless retaliatory lawsuits. Those protections are now gone. As to the jury trial issues, the odd fact is that the claims in the Davis lawsuit were exclusively equitable, and so there was no right to trial by jury available here. — Bruce Johnson, June 1, 2015 (attorney for Defendants-Respondents)

— Related Materials

Venkat Balasubramani, “Washington Anti-SLAPP Statute Violates Right To Jury Trial –Davis v. Cox,” Technology & Marketing Law Blog, June 1, 2015

Bruce E. H. Johnson, Eric M. Stahl, and Ambika Kumar Doran, DWT, “State Supreme Court Strikes Down Washington’s Anti-SLAPP Statute” (May 28, 2015) (“Today’s decision is significant because it holds the anti-SLAPP statute unconstitutional on its face, meaning it cannot be applied in any circumstance. Because the basis is the state constitution, the Washington Supreme Court’s opinion is the last word, pending any future legislative fix. It therefore appears that, for now at least, media defendants and others have lost an important protection against baseless lawsuits targeting their First Amendment activities.” (Note: Mr. Johnson represented the Defendants in Cox.)

→ Karen Peterson, “We’ve lost the free-speech protections of our anti-SLAPP law,” News Tribune, May 31, 2015 (Ms. Peterson is the paper’s executive editor)

See also amicus brief of Jessica L. Goldman & Eugene Volokh on behlaf of Reporters Committee for Freedom of the Press, et al, on behalf of Defendants-Respondents (the brief did not focus on the jury trial issue.)

→ For the history of the Washington State anti-SLAPP law, see Tom Wyrwich, “A Cure for a ‘Public Concern’: Washington’s New Anti-SLAPP Law,” 86 Washington Law Review 663 (2011) (which the Court quoted several times).

Public Citizen defends anonymous speech in defamation case

The case is Thompson v. Doe (Div. 1, #72321-9), which was argued (audio here) recently in the Washington State Court of Appeals. According to a news report filed Tampa Tribune reporter Elaine Silvestrini: “When an anonymous online commenter accused her of being incompetent and unprofessional, lawyer Deborah Thomson was stunned. . . . The single-star review, written by someone identified only as ‘a divorce client,’ is still there, tucked among 10 other glowing, five-star ratings. Thomson, a partner in The Women’s Law Group in Tampa, says the negative statements are simply not true. . . . So Thomson filed a defamation lawsuit against ‘Jane Doe.'” Brief for Appellant here (Deborah L. Thompson, pro se).

→ Paul Alan Levy filed a Response Brief for  the Public Citizen Litigation Group on behalf of Jane Doe.

Public Citizen counsel: Paul Alan Levy

Public Citizen counsel Paul Alan Levy

From Public Citizen Litigation Group website: “An anonymous review on Avvo criticized the services provided by a Tampa Florida divorce lawyer to her client. The lawyer sued the reviewer in Florida state court, then issued a Washington subpoena to compel Avvo to provide information identifying the client. Avvo served objections to the subpoena, and the lawyer moved to compel. The trial court denied the motion and the lawyer appealed. Because Washington state courts have not yet decided whether to adopt the Dendrite approach to subpoenas to identify anonymous speakers, which we created and have since championed, we entered the case on appeal to represent the client in defending her First Amendment right to remain anonymous. We argue that denial of the motion to compel should be affirmed because the lawyer presented no evidence that anything the client said constituted a false statement of fact, or that the allegedly defamatory words had caused the lawyer any injury.”

Washington D.C. Transit Authority bans “issue-oriented” advertisements 

imagesAccording to a news story in WND, “the Washington D.C. Transit Authority that oversees buses and trains in the nation’s capital has decided to ban “issue-oriented” advertisements for the rest of 2015 after receiving an ad proposal depicting a cartoon of Muhammad.”

“The cartoon, featuring a fierce man wielding a sword and wearing a turban with the caption ‘You can’t draw me!’ won a ‘Draw Muhammad’ contest in Garland, Texas earlier this month. The ads would have sported a banner saying ‘Support Free Speech.’ ctivist Pamela Geller made the advertising request, saying the decision is ‘an end run around the First Amendment.'”

See also Lori Aratani & Paul Duggan, “Metro bans issue-oriented ads from system through year’s end,” Washington Post, May 28, 2015.

In the coming months, Metro will fully consider the impact that issue-related advertisements have on the community by gathering input from riders, local community groups and advocates,” spokesman Michael Tolbert said in a statement. “Metro will also carefully examine the legal concerns related to displaying, or discontinuing the display of, issue-related advertisements.” At the end of the year, the board will decide whether or not to continue the ban. — Julian Hattem, “DC Metro bans ‘issue’ ads after Muhammad cartoon request,” The Hill, May 28, 2015

Judging CJ Roberts’s 1-A Record  

David H. Gans over at the Constitutional Accountability Center has a new article titled “Roberts at 10:The Strongest Free Speech Court in History?” Here are a few excerpts:

David Gans

David Gans

“Observers on both the right and the left have called the Roberts Court the “strongest First Amendment Supreme Court in our history,” and there is no doubt that John Roberts has been at the forefront of the Roberts Court’s First Amendment jurisprudence. In his nearly ten years on the Court, Chief Justice Roberts has written more majority opinions in free speech cases than any other current member of the Court, including opinions in a host of the Court’s most important First Amendment cases. Significantly, Roberts has not dissented in any major First Amendment case. . . .”

“In Roberts’s view, ‘[t]he First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’—not whatever the State may view as fair.’ As Chief Justice, Roberts has repeatedly celebrated “[t]he First Amendment’s purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ Despite these broad and universal-sounding claims, a complete review of the Chief Justice’s First Amendment jurisprudence demonstrates that Roberts has been more favorable to some free speech claims than to others. . . . “

Conclusion: During his tenure as Chief Justice, John Roberts has been at the forefront of the Court’s First Amendment jurisprudence, writing more of the Court’s rulings in First Amendment cases than has any other current Justice. While Roberts has been celebrated for leading a significant expansion of the First Amendment’s guarantee of freedom of speech, the reality is more complicated. As his majority opinions reflect, Roberts has been partial to some free speech claims and hostile to others. Roberts has also led the charge for insisting that corporations and other powerful interests receive the full protection of the constitutional guarantee of freedom of speech. Under Chief Justice Roberts’s leadership, the Supreme Court has made the First Amendment a powerful weapon for corporations and the wealthy seeking to annul government regulation.”

New Article : “Leaking and Legitimacy” by Margaret B. Kwoka

Abstract: Julian Assange, Chelsea Manning, and Edward Snowden have captured the world’s attention in recent years by leaking massive quantities of secret government information. In each case, critics have made much of the fact that the leaks were in violation of government secrecy laws, while supporters have drawn parallels with whistleblower leaks, including the most famous and now widely acclaimed leak in United States history, Daniel Ellsberg’s leak of the Pentagon Papers.

This Article makes two important contributions to this debate. First, it defines this type of leak — which it labels a “deluge leak” — as a new category. Unlike whistleblower leaks, which expose targeted government policies about which a knowledgeable leaker is concerned (in Ellsberg’s case, military involvement in Vietnam), deluge leaks are a broad response to excessive government secrecy insofar as they reveal a vast array of records about which the leaker knows relatively little.

Second, departing from traditional criminal law and First Amendment analyses of these leaks, this Article examines deluge leaks through the lens of the social science literature on legitimacy. That literature establishes that a perceived lack of procedural justice is a key reason that people break the law. Currently, deficient procedural justice characterizes the suite of laws that governs the public’s right to access government information, including the Freedom of Information Act, the classification system, and whistleblower protections. This lack of legitimacy is an important motivation for recent deluge leaks, as the leakers’ own actions and words demonstrate. The Article concludes by arguing, counter-intuitively, that improving transparency laws would better protect national security secrets.

New & Forthcoming Books

Andrew C. McCarthy, Islam & Free Speech: Encounter Broadside #42 (Encounter Books, 2015)

UnknownIn January 2015, Muslim terrorists massacred cartoonists and writers at the Paris offices of the satirical magazine Charlie Hebdo, proclaiming to be avenging Islam’s prophet. The rampage, which included the murders of hostages at a kosher market, prompted global leaders and throngs of citizens to rally in support of free expression. But was the support genuine?

In this Broadside, Andrew C. McCarthy explains how leading Islamists have sought to supplant free expression with the blasphemy standards of Islamic law, gaining the support of the U.S. and other Western governments. But free speech is the lifeblood of a functioning democratic society, essential to our capacity to understand, protect ourselves from, and ultimately defeat our enemies. [Publisher’s blurb]. See also “Mark Levin Interviews Andrew C. McCarthy on Islam & Free Speech” (YouTube video here)

Stephen Brody & Bruce Johnson, Advertising and Commercial Speech: A First Amendment Guide (May 2015 Edition) (Practising Law Institute Intellectual Property Law Library)

41Gx8zQjuHL._BO2,204,203,200_PIsitb-sticker-v3-big,TopRight,0,-55_SX278_SY278_PIkin4,BottomRight,1,22_AA300_SH20_OU01_When are advertisers especially vulnerable to lawsuits? What legal protections do they enjoy? What is the prevailing law in this volatile area?

PLI’s Advertising and Commercial Speech: A First Amendment Guide gives you the authoritative answers. Written by First Amendment experts, it examines the origin, meaning, and legal evolution of the Supreme Court’s commercial speech doctrine, focusing on how this central doctrine’s rights and restrictions affect advertising in nearly 50 industries and professions.

Accessible enough for non-lawyers, Advertising and Commercial Speech shows you how commercial speech is defined today and when it can be regulated and even prohibited; what is the appropriate legal standard for defamation lawsuits based on advertising; how much legal ”breathing room” advertisers have for false commercial speech; what is ”disparagement” and how it can be proved by plaintiffs in court; when the media is prohibited from refusing advertisements; and when broadcasters and publishers can be sued for negligent false statements.

Updated at least once a year, Advertising and Commercial Speech: A First Amendment Guide is an invaluable reference for lawyers, advertisers, and regulators, and an illuminating resource for any individual interested in First Amendment issues. [Publisher’s blurb]

→ Derek Cressman, When Money Talks: The High Price of “Free” Speech and the Selling of Democracy (Berrett-Koehler Publishers, January 11, 2016)

John C. Knechtle, Mastering First Amendment Law (Carolina Academic Press, November 2015)

Campus Free-Speech Watch

  1. Lydia Wheeler, “Colleges are restricting free speech on campus, lawmakers say,” The Hill, June 2, 2015 (see also here re video of congressional testimony)
  2. Defending Unpopular Speech on Campus: Q&A with Jason Willick,” TheFire.org, June 2, 2015 (YouTube video)
  3. Daniel Mael, “The ‘Speech-Denialists,‘” Gatestone Institute, June 2, 2015
  4. Editorial, “The drive to save free speech on America’s campuses,” New York Post, May 23, 2015

New & Forthcoming Scholarly Articles

  1. Timothy Zick, “First Amendment Cosmopolitanism, Skepticism, and Democracy,” Ohio State Law Journal (2015)
  2. Carlo A. Pedrioli, New York Times v. Sullivan and the Rhetorics of Race: A Look at the Briefs, Oral Arguments, and Opinions,” Georgetown Journal of Law & Modern Critical Race Perspectives (2015)
  3. Thomas Schweitzer, “Lane v. Franks: The Supreme Court Clarifies Public Employees’ Free Speech Rights,Touro Law Review (2015)
Charissa Brooks (check out her video -- quite good!)

Charissa Brooks (check out her video — quite good!)

New YouTube Posts

  1. Richard Rogers, Lecture: “The Internet Treats Censorship as a Malfunction & Routes Around It” (Nov. 10, 2015, posted: June 1, 2015)
  2. First Amendment Fight: Clark High School Bans ‘Pro’Life” Club — “Too Controversial,Fox News, May 30, 2015
  3. AT&T Raises 1st Amendment Concerns Over Net Neutrality,” IGN News, May 28, 2015
  4. Defending Our First Amendment Freedoms,” National Religious Broadcasters’ Convention (2015)
  5. Charissa Brooks, “Infomercial Video-First Amendment” (AP English 11)
  6. Judge Jeanine, “Free Speech Under Attack: May Already Be Too Late For Free Speech In America!,” Fox News (interview with Kirsten Powers re her new book, The Silencing: How the Left is Killing Free Speech)
  7. Free Speech Under Attack The Kelly File,” Fox News, May 30, 2015 (discussion of attempt to post Mohammad cartoon on DC transits, see story above)

Video Flashback

New & Noteworthy Blog Posts

  1. Eugene Volokh, “The Supreme Court doesn’t decide when speech becomes a constitutionally unprotected “true threat”,” Volokh Conspiracy, June 1, 2015
  2. Eugene Volokh, “New Jersey judge orders newspaper to take down article,” Volokh Conspiracy, May 31, 2015 (“Fortunately, the judge promptly backed down and vacated the order.”)
  3. Nadia Kayyali, “Congress Must Not Authorize More Chilling of the First Amendment with Material Support Laws,” Electronic Frontier Foundation, May 29, 2015
  4. Ruthann Robson, “Second Circuit Upholds DMV Ban of “Choose Life” License Plate Against First Amendment Challenge,” Constitutional Law Prof blog, May 27, 2015 (re Children First Foundation v. Fiala)

News, Op-eds, Commentaries & Blog Posts

  1. James A. Lyons, “Free speech opponents enforce Islamic law, challenge our fundamental freedoms,” Accuracy in Media, June 3, 2015
  2. George Will, ” Super PACs protectors of free speech,” The Columbian, May 31, 2015
  3. George Will, “A summer break from the censorship of the campus,” Delaware Online, May 29, 2015
  4. Melissa Clyne, “Charlie Daniels: Why Is Obama Afraid to Say ‘Radical Islam’,” Newsmax, May 29, 2015
  5. NY’s de Blasio bans protesters at event to ‘free speech zone,” Fox News, May 29, 2015
  6. Eugene Volokh, “No crime of ‘hate speech’ under D.C. Law,” Volokh Conspiracy, May 29, 2015
  7. Josh Feldman, “Head of Phoenix Islamic Center: Rally Using First Amendment as ‘Cover for Racism’,” Mediaite, May 29, 2015
  8. Jennifer Smith, “Art Activists File First-Amendment Rights Suit Against New York City,” Wall Street Journal, May 26, 2015

Two-year litigation fellowship opening at Reporters Committee 

Stanton Foundation Media Litigation Fellowship (2015-2017): The Reporters Committee for Freedom of the Press is now accepting applications for a new fellowship. The Stanton Foundation Media Litigation Fellowship is a new opportunity for an early-career lawyer to play a hands-on role in the full scope of First Amendment and free press litigation matters handled by Reporters Committee staff attorneys.

logoThe Stanton Foundation Fellow will report directly to our Litigation Director and work on small litigation teams with other legal fellows and Reporters Committee staff attorneys on a variety of First Amendment and media law cases, with a focus on assisting with access to courts and freedom of information litigation brought on behalf of the Reporters Committee, journalists, and news organizations.

The Stanton Foundation Fellow will participate in all aspects of state and federal litigation at both the trial and appellate level, including motion practice, discovery, brief writing, and hearing/oral argument preparation.  Candidates for this challenging and rewarding two-year fellowship beginning in the fall of 2015 should have a demonstrated interest in the First Amendment and media law. Post-law school judicial clerkship, fellowship, and/or litigation experience with a law firm or public interest organization is strongly preferred.  However, recent law school graduates with strong credentials will be considered.

Applicants should be admitted to practice law in at least one jurisdiction or awaiting bar exam results/admission in at least one jurisdiction at the start of the fellowship term. Applicants who are not members of the D.C. Bar will be required to seek admission. The Stanton Foundation Fellow will be paid an annual salary of $68,000 and will receive full health benefits.

Go here for more information re how to apply for the fellowship.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-01-15]

Cases Decided 

  1. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  2. Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)

Review Granted & Cases Argued

  1. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  2. Reed v. Town of Gilbert (argued 1-12-15)
  3. Walker v. Texas Division, Sons of Confederate Veterans (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 (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

  1. O’Keefe v. Chisholm
  2. King v. Christie
  3. Apel v. United States 
  4. Dariano v. Morgan Hill Unified School District
  5. The Bronx Household of Faith v. Board of Education of the City of New York 
  6. Arneson v. 281 Care Committee
  7. Kagan v. City of New Orleans
  8. ProtectMarriage.com-Yes on 8 v. Bowen
  9. Clayton v. Niska
  10. Pregnancy Care Center of New York v. City of New York 
  11. City of Indianapolis, Indiana v. Annex Books, Inc.
  12. Ashley Furniture Industries, Inc. v. United States 
  13. Mehanna v. United States
  14. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  15. Vermont Right to Life Committee, et al v. Sorrell

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

LAST SCHEDULED FAN POST, #61: “Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era

NEXT SCHEDULED FAN POST, #63: Wednesday, June 10, 2015

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