FAN 71 (First Amendment News) Just Released: 2nd ed. of Cogan’s “The Complete Bill of Rights” — 30 New Pages on History of Press & Assembly Clauses

This book is an invaluable resource for constitutional scholars, teachers, litigators, and judges alike. It collects and collates the basic texts necessary for informed interpretation of the Bill of Rights and gives them to researchers in a compact, comprehensive, and reliable form that is wonderfully organized for both quick scanning and sustained critical analysis. It makes previously difficult research tasks easy and opens new lines of thinking at a glance.– Anthony G. Amsterdam (2015)

41lkMJ+mUtL._SX348_BO1,204,203,200_The second edition of Professor Neil Cogan’s monumental The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (Oxford University Press) has just been released. Get out your wallet, for this book is well worth the $185.00 list price. Really!

Here is what Floyd Abrams said of the first edition: “For anyone interested in our Constitution, our history, or our political theory, this book is an intellectual treasure chest. It is more than legislative history. It is constitution-drafting in the raw — all the proposals and all the give-and-take (some of it disturbing) that resulted in the adoption of the Bill of Rights.” The historian Stanley Katz referred to it as “a major occasion in American publishing. . . . This is a triumph of careful and thoughtful scholarship. It is now one of the essential components of the the library of constitutionalism.” Though it is hard to imagine, Cogan’s second edition is even better and more triumphant!

 The second edition (1362 pp.) almost doubles the first edition (705 pp.) in length by adding, among other things, lengthy excerpts from the treatises and dictionaries familiar to judges and lawyers in the 1780s. (Note: the pages in the new edition are also longer and its margins are narrower.)

In the First Amendment section — other than in the religion clauses segments which total 146 pages — new materials were added to the Press Clause segment and to the Assembly Clause segment. The majority of the newly added materials in those areas appears in the Press Clause segment (five new entries: Bacon, Burn, Cunningham, Jacob, and Viner) and one new entry for the Assembly Clause segment (Burn). The new sources materials for those segments of second edition of The Complete Bill of Rights are listed below:

  1. Matthew Bacon, A New Abridgment of the Law (London (Savoy): E. & R. Nutt & R. Gosling, 1736) [NB: hyperlink is to a later edition]
  2. Richard Burn, Justice of the Peace & Parish Officer (London: Ho. Woodfall & W. Strahan, 10th ed., 1776) [NB: hyperlink is to a later edition]
  3. T. Cunningham, A New And Complete Law-Dictionary (London: Law Printers to the King, 1764, 1765) (Adams Library)
  4. Giles Jacob, The New-Law Dictionary (London (Savoy): Henry Lintot, 1743) (Adams Library) [NB: hyperlink is to an earlier edition]
  5. Charles Viner, A General Abridgment of Law and Equity (London, 1742) (Adams Library)

In the Press Clause segment, the 27 pages of new materials (pp.  182-208) consist of definitions and discussions of defamation:

  • What is it?
  • What amounts to a libel?
  • How much certainty is required?
  • Can statements made in court amount to defamation?
  • Who qualifies as a libeler?
  • What constitutes publishing?
  • What matters are for a judge or jury to decide?, and
  • What  punishment (civil and/or criminal), if any, is appropriate?

Beyond this, there is also an entry from Richard Burn’s treatise concerning religious and civil laws regulating swearing (pp. 206-208)

The new entry concerning the Assembly Clause (pp. 254-61) segment consists of seven pages (also from Richard Burn’s treatise). Those pages largely concern definitional and related questions, which are divided into the following six subcategories:

I.    “What is a riot, rout, or unlawful assembly”?

II.   “How the same may be restrained by a private person.” [re common law powers to suppress a riot]

III.  “How by a constable, or by other peace officer.” [re common law powers to suppress a riot]

IV.  “How by one justice.” [re statutory powers of a justice of the peace to restrain, arrest, chastise or punish.]

V.    “How by two justices.”  [re statutory powers of two or three justices of the peace to use “the power of the country” or that of the sheriff to enforce an order re a riot or unlawful assembly]

VI.  “How by a process out of chancery.” [re statutory powers of chancery court to inquire into the truth of any complaint brought by an aggrieved party].

Professor Neil Cogan

Professor Neil Cogan

Whatever one thinks of textualism and/or historicism, Professor Cogan has performed a great public service in bringing into sharper focus the historical backdrop of the Bill of Rights. In a 1993 letter to Cogan, the late Gerald Gunther tagged the first edition as a “very valuable book” and a “marvelous collection” of historical documents. (Cynthia Cotts, “A Dean’s Book on Bill of Rights Scores with Supremes, Scholar,” National Law Journal, Nov. 24, 1997). For those who knew Gerry Gunther, he was not one to offer exaggerated or unmerited praise. That said, he was too modest in his assessment of The Complete Bill of Rights. Then again, perhaps he knew better than most that superlatives may sometimes devalue the true worth of a great work. In that spirit, nothing much need be added other than this: The second edition of The Complete Bill of Rights is even more “valuable” than the first.    

Cert Petition Filed in Occupational Speech Case

A cert. petition has just been filed in Hines v. Alldredge, an occupational free speech case. As described by the Fifth Circuit when a three judge panel decided the case last March: “Texas requires veterinarians to conduct a physical examination of an animal or its premises before they can practice veterinary medicine with respect to that animal. In this case, we must decide whether this requirement violates the First or Fourteenth Amendment.” The Court, in a unanimous opinion by Circuit Judge Patrick Higgonbotham, denied the First Amendment claim.

The petition was filed by Jeffrey T. Rowes, counsel of record, along with Dana Berliner and Matt Miller, all from the Institute for Justice. In their brief they argue:

Jeffrey T. Rowes

Jeffrey Rowes

“This Petition raises a matter of first impression in this Court about occupational speech. While such speech is widespread, this Court has never squarely addressed its constitutional status. The Fifth Circuit below held that restrictions on veterinary-medical advice are not subject to First Amendment scrutiny. There is now a direct, outcome-determinative split of authority between the Fifth and Eleventh Circuits on the one hand, and the Third and Ninth Circuits on the other, over whether the First Amendment protects medical advice. More generally, the decision below also deepened intractable splits of authority over whether restrictions on occupational speech are ever subject to First Amendment scrutiny.”

  • “Occupational Speech Cannot Be Classified as Conduct and Stripped of First Amendment Protection Because the Distinction Between General Speech and Occupational Speech Is Itself a Content-Based Distinction”
  • “The Government’s Motive in Regulating Occupational Speech Does Not Remove that Speech from the First Amendment.”

Amicus brief of Cato Institute & Mackinac Center for Public Policy in support of Petitioner (Cynthia Fleming Crawford, Counsel of Record along with Skyler Peacock, Ilya Shapiro & Patrick J. Wright)

 Amicus brief of Association of American Physicians and Surgeons, Inc. in support of Petitioner (Andrew Schlafly, counsel of Record)

Scholarly Works re Occupational Speech

  1. Robert Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press, 2013)
  2. Robert Post & Amanda Shanor, “Adam Smith’s First Amendment,” 128 Harv. L. Rev. F. 165 (2015)
  3. Paul Sherman, “Occupational Speech and the First Amendment,” 128 Harv. L. Rev. F. 183 (2015)
  4. Martha Swartz, “Are Physician-Patient Communications Protected by the First Amendment?,” 2015 Cardozo L. Rev. de novo 92 (2015)

Divided 11th Circuit Panel Upholds “Physician-Gag” Rule

[G]overnment officials in Florida and across the country argue that normal First Amendment rules don’t apply to licensed occupations — a position that is serving as cover for increasingly broad-ranging censorship. — Paul Sherman & Robert McNamara, “Censorship in Your Doctor’s Office,” New York Times, Aug. 1, 2014

Florida’s Firearm Owners Privacy Act: The Act provides, in relevant part, that licensed health care practitioners and facilities

(i) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,”§ 790.338(1);

(ii) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or his or her family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” § 790.338(2);

(iii) “may not discriminate” against a patient on the basis of firearm ownership, § 790.338(5); and

(iv) “should refrain from unnecessarily harassing a patient about firearm ownership,” § 790.338(6)

In Wollschlaeger v. Governor of the State of Florida (11th Cir., July 28, 2015) a three-judge panel of the Eleventh Circuit upheld Florida’s “physician-gag” rule. The majority opinion was written by District Court Judge Gerald Bard Tjoflat and joined in by District Judge L. Scott Coogler. Circuit Judge Charles R. Wilson dissented

First Amendment Challenges: “Plaintiffs’ facial attacks on the Act arise under two separate provisions of the Constitution. First, they contend that § 790.338(1), (2), (5), (6) — the record-keeping, inquiry, discrimination, and harassment provisions of the Act10—impermissibly trench upon their rights under the First Amendment. In their view, the Act is a content-based restriction on speech and as such, is subject to—and fails—strict scrutiny. Plaintiffs also assert that the Act is overbroad; that is, they claim that even if the Act’s regulation of speech is constitutional in a limited number of situations, it nonetheless proscribes a substantial amount of legitimate speech, and must fall.” The other challenge was a Due Process vagueness challenge.

In his majority opinion, Judge Tjoflat ruled on two basic constitutional claims:

Vagueness Claims: “The record-keeping provision is sufficiently clear that a person of common intelligence need not guess as to what it prohibits. The inquiry provision is phrased slightly differently, but we think it is substantially similar to the record-keeping provision in terms of its practical effect. . . The harassment provision is sufficiently clear that a person of common intelligence need not guess as to what it prohibits.”

First Amendment Claims: “[W]e conclude that while the discrimination provision is a regulation of professional conduct with merely an incidental effect on speech, and thus does not implicate the First Amendment, the record-keeping, inquiry, and harassment provisions do regulate a significant amount of protected speech. Accordingly, we must proceed to determine what level of scrutiny the First Amendment demands of these provisions. . . .[T]he Supreme Court has yet to clarify the precise level of scrutiny with which to review government restrictions of professional speech. To bridge this gap, we must proceed via inference from the known to the unknown. . . . [W]e need not determine conclusively whether a lesser form of scrutiny ever applies to regulations of professional speech, because in this case the outcome is the same whether a heightened intermediate scrutiny standard or some lesser level of judicial scrutiny is applied. [Nonetheless, the majority invoked intermediate scrutiny analysis and concluded that] the Act [was] precisely tailored to the State’s legitimate interests” and thus upheld the law.

 Judge Wilson dissenting: “The Majority has vacated its original opinion and replaced it with one that,unlike the original opinion, subjects Florida’s Firearm Owners’ Privacy Act (Act) to First Amendment scrutiny. While this is an encouraging development, the Majority believes the Act survives intermediate scrutiny. It does not. For this reason, I continue to dissent. . . [W]hile the Act does not advance the State’s asserted interests, the Act does significantly limit doctors’ ability to speak to their patients in ways that they believe will protect the public and save lives. The poor fit between what the Act actually does and the interests it purportedly serves belies Florida’s true purpose in passing this Act: silencing doctors’ disfavored message about firearm safety. This, the State cannot do. . . .”

Counsel for Plaintiffs-AppelleesDouglas Hallward-Driemeier

 Counsel for Defendants-Appellants: Jason Vail, Allen C. Winsor, Pam Bondi, Timothy David Osterhaus, Office of the Attorney General, Tallahassee, FL.

Headline: “Idaho: Ban on Filming Animal Abuse Unconstitutional”


Facts: Last year “a coalition of organizations dedicated to civil liberties, animal protection, food safety, labor rights, and the environment, along with journalists, filed a federal lawsuit to overturn Idaho’s newly passed “ag gag” statute, signed into law by Idaho governor C.L. “Butch” Otter on February 28. The lawsuit challenges the constitutionality of Idaho’s ag gag law (Idaho Code sec. 18-7042), and was filed in the U.S. District Court for the District of Idaho by national nonprofits Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), the American Civil Liberties Union of Idaho (ACLU), and the Center for Food Safety (CFS). Idaho is the seventh state to pass an ag gag law, and the first to do so since 2012.” (Source: here)

The Idaho law is deeply distressing because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech. It even would criminalize a whistle-blower who took a picture or video of wrongdoing in the workplace. I am confident that this law will be struck down under Ninth Circuit and Supreme Court precedents.Erwin Chemerinsky, March 17, 2014

Monday’s Ruling: This from an Associated Press story that appeared in yesterday’s New York Times online: “A federal judge has ruled that Idaho’s law banning secret filming of animal abuse at agricultural facilities is unconstitutional. United States District Court [Chief] Judge B. Lynn Winmill ruled Monday that the law violated the First Amendment. ‘Audio and visual evidence is a uniquely persuasive means of conveying a message, and it can vindicate an undercover investigator or whistle-blower who is otherwise disbelieved or ignored,’ Judge Winmill wrote. ‘Prohibiting undercover investigators or whistle-blowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast.'”

The District Court OpinionAnimal Legal Defense Fund, et al. v. Otter (Dist. Ct., ID) (Case No. 1:14-cv-00104-BLW)

The Complaint (see here)

Counsel for PlaintiffsJustin Marceau, Matthew Liebman, Matthew Strugar, Paige M. Tomaselli, Richard Alan Eppink, & Maria E. Andrade

 Commentary: Ruthann Robson, “District Judge Holds Idaho’s Ag-Gag Law Unconstitutional,” Constitutional Law Prof Blog, Aug. 3, 2015

→ Video News Clip: “Judge says ag gag law violates First Amendment, strikes it down,” ABC News (YouTube video)

[ht: Margot Kaminski]

Mauro on Aftermath of Reed v. Town of Gilbert Ruling  

Tony Mauro has another eye-opening article, this time on the effects of the Court’s recent ruling in Reed v. Town of Gilbert (2015). The article is titled “The Fallout From the Supreme Court’s Sign Ordinance Ruling” and appears in the July 29th 2015 issue of the National Law Journal.  Here are a few excerpts:

“. . . . The unanimous decision has already prompted lawyers for local governments to dust off sign codes for a fresh look. Reed is also likely to trigger litigation that could affect political signage in next year’s presidential election and could spill into other areas of First Amendment litigation, far afield from signage disputes.”

Tony Mauro

Tony Mauro

“‘Some experts say that every sign code has a problem,’ said Lisa Soronen, executive director of the State and Local Legal Center, who closely follows Supreme Court cases that affect governments. ‘After Reed, I’d say every sign ordinance needs a facelift.'”

“Institute for Justice lawyer Robert Frommer said, ‘Reed is a game-changing opinion that will increase speech protections for a wide class of speakers. Thousands of sign codes are now constitutionally suspect.'”

“The institute, a libertarian litigation group, is gearing up a campaign to contact localities around the country and offer assistance in revising sign codes. ‘We will tell them we are willing to work with you and fix these codes,’ Frommer said. . . .”

The Reed ruling has already been cited in a petition to the Supreme Court that is not related to sign codes. In Hines v. Alldredge, Texas veterinarian Ronald Hines is challenging a rule that kept him from giving pet advice on the Internet. The regulation bars vets from giving any medical advice about an animal they have not examined in person. He sued on First Amendment grounds, and his Institute for Justice lawyers invoked the Reed decision to argue that the regulation should be viewed as a content-based restriction on speech, even if it has benign purposes. ‘A noncensorial purpose for a speech regulation cannot inoculate it from First Amendment scrutiny,’ Sommers said.”

“In New Hampshire, the ACLU’s Bissonnette has also invoked Reed in a nonsign case. In Rideout v. Gardner, the ACLU is challenging the state’s so-called ‘ballot selfie’ law, which prohibits voters from publicly revealing how they marked their ballot. That too is content-based and would fall under the strict scrutiny required by Reed, Bissonnette told the federal district court judge in New Hampshire in a supplemental statement. . . .”

Check out the full article for more news and analysis.

See also David Cortman, “Supreme Court Decision Ensures Fair Playing Field In Marketplace of Ideas,” Jurist, Aug. 4, 2015

Buchanan, VA. Man Battles City Officials Over Protest Signs 

imagesIn a story in the Roanoke Times, Laurence Hammack writes: “To fill an empty storefront is the constant ambition of this small town, which is trying to make a comeback from where it sits at the bottom of Purgatory Mountain. But the way Ken and Francine Bray have filled the front of their closed business — with signs that trash town hall — is not what the local leaders had in mind. ‘SHAME ON THE TOWN OF BUCHANAN,’ one sign blares. In bold but neat lettering, most of the 16 signs accuse the town of refusing to issue business licenses or permits for Glow-A-Rama, a youth recreation center run by the Brays . . .”

“The signs are a daily irritant to Buchanan’s officials and merchants, who are in the midst of a campaign to bring more business and vitality to the town. On July 17, the Buchanan Planning Commission voted unanimously to find the Brays in violation of the town’s sign ordinance. . . .”

Jane Bambauer Wins Free-Speech Award

Professor Jane Bambauer

Professor Jane Bambauer

When I first read a pre-publication version of Professor Jane Bambauer’s article “Is Data Speech?,” I immediately urged our Law Review to proceed with dispatch, without equivocation, and to do whatever it took to secure publication. Unfortunately, the editors paused . . . and in the process the article was quickly picked up by the Stanford Law Review. Our loss, her gain. It is one of the best and original free speech articles I have read in years.

Thus, I was not surprised when my friend and colleague Professor Kyu ho Youm told me that Professor Bambauer was to be the first recipient of the Harry W. Stonecipher Award. The award was created to honor the best scholarship in communication and free speech law in the previous year. Naturally, she received the award for her article “Is Data Speech?”

The article was chosen among dozens of nominees by the selection committee, comprising communication law scholars from the Law and Policy Division of the Association for Education in Journalism and Mass Communication.

Speaking of the Bambauers, here is another remarkable article, this one Derek Bambauer and titled “Orwell’s Armchair,” University of Chicago Law Review (2012).

Flashback: Executive Order 2604 — Censorship of Submarine Cables, Telegraph and Telephone Lines (April 28, 1917)

In case you have never seen this, here is an Executive Order issued by President Woodrow Wilson on April 28, 1917:

Whereas, the existence of a state of war between the United States and the Imperial German Government makes it essential to the public safety that no communication of a character which would aid the enemy or its allies shall be had, 

Therefore, by virtue of the power vested in me under the Constitution and by the Joint Resolution passed by Congress on April 6, 1917, declaring the existence of a state of war, it is ordered that all companies or other persons, owning, controlling or operating telegraph and telephone lines or submarine cables, are hereby prohibited from transmitting messages to points without the United States, and from delivering messages received from such points, except those permitted under rules and regulations to be established by the Secretary of War for telegraph and telephone lines, and by the Secretary of the Navy for submarine cables, 

To these Departments, respectively, is delegated the duty of preparing and enforcing rules and regulations under this order to accomplish the purpose mentioned. 

This order shall take effect from this date. 


See here re some of the regulations adopted to enforce the order.

New & Notable Magazine Article

→ John C. Coates & Ron Fein, “Corporations Are Perverting the Notion of Free Speech,” Newsweek, Aug. 4, 2015:

“In the past two months, corporations have argued that they have a First Amendment right to block laws requiring labels to disclose added sugars in San Franciscocellphone radiation risks in Berkeley, California and genetically engineered ingredients in Vermont. In September, a franchising trade group will argue that Seattle’s minimum wage law violates (somehow) the First Amendment rights of multinationals like McDonald’s. In one federal court, Arkansas is fighting to defend a ban on private surveillance firms using digital license plate scanners to record the movements of drivers on the state’s roads. Another appellate court is weighing whether to revise its earlier ruling that a law requiring publicly traded corporations to report whether their products are made from conflict minerals violates these companies’ freedom of speech.”

New & Forthcoming Scholarly Articles

  1. Tabatha Abu El-Haj, “Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly,” Missouri Law Review (forthcoming 2016)
  2. Alexander Tsesis, “The Categorical Free Speech Doctrine and Contextualization,” Emory Law Journal (forthcoming 2015)
  3. Geoffrey A. Manne, Ben Sperry, Thomas W Struble & Berin Michael Szoka, “A Conflict of Visions: How the ’21st Century First Amendment’ Violates the Constitution’s First  Amendment,” First Amendment Law Review (2015)

News, Op-eds., Blog Posts & Magazine Commentaries

Adelle Nazarian, “First Amendment: Developers Sue Oakland over Art, Breitbart News, Aug. 3, 2015: “The Pacific Legal Foundation is representing the Building Industry Association, which is suing over a new law, implemented this past February. The new law requires one percent of the budget for non-residential construction projects, and half of that amount for new residential buildings, to be contributed to public art, which must be made accessible to the public. Essentially, all developers with a construction permit are required to pay the fee for public art.”

Eugene Volokh, “Threats conviction for saying ‘I’m gonna get you’ reversed,” The Volokh Conspiracy, Aug. 4, 2015

→ Appeals court rules letter to abortion clinic not necessarily protected speech,” Jurist, July 30, 2015

  1.  Kelefa Sanneh, “The Hell You Say,” The New Yorker, August 10, 2015
  2. Does The First Amendment Protect The Release of Videos Exposing Planned Parenthood?,” The Federalist, Aug. 4, 2015
  3. Jeff Mosier, “Controversial Tweets Ignite Free Speech Battle at Texas Christian University,” Dallas Morning News, Aug. 3, 2015
  4. Letty Burgin, “Former Valdosta student settles First Amendment lawsuit for $900K,Campus Reform, Aug. 3, 2015
  5. Gene Policinski, “State of the First Amendment — as others see it,” Quad-City Times, Aug. 2, 2015
  6. Steven Schwinn, “Southern District Rebuffs Citizens United’s Speech Claim,” Constitutional Law Prof Blog, July 30, 2015
  7. Hans von Spakovsky, “A California Judge Needs a Lesson in the First Amendment,” The Daily Signal, July 30, 2015

New YouTube Postings

  1. “‘Free speech is not about being sensitive,’ Says ChaPman University President,” Reason TV, Aug. 4, 2015
  2. Free Speech Under Attack – First Amendment” – Hannity, Fox News (posted July 30, 2015)
  3. Free Speech Under Attack In America – First Amendment – The Kelly File,” Fox News, May 7, 2015 (posted July 30, 2015) (with Alan Dershowitz & Rich Lowry)

Last Scheduled FAN, #70: “10 Little known or long forgotten facts about the First Amendment

Last FAN, #70.1: “Amarin v. FDA –Important Commercial Speech Case May be Decided Soon

Next Scheduled FAN, #72: August 13, 2015

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1 Response

  1. Shannon says:

    Very interesting post. I often see changes take effect in the US then we follow ( Australia )