FAN 76 (First Amendment News) Federal Report on Ferguson Identifies First Amendment Concerns

53ee71fd731e9.imageIn a report recently issued by the U.S. Department of Justice (see press release here), questions were raised concerning the First Amendment and the police handling of demonstrations in Ferguson, Missouri. Among other things, the 162-page Report stated:

  1. [Discretionary application of sanctions]: “[A]s the ‘keep moving’ order was put into effect, protected First Amendment activity was swept up by prohibition of such activity and threat of (or actual) arrest. Discretionary application of sanctions by law enforcement is always a concern. The exposure to potential arrest for exercising one’s right to peacefully assemble and protest was problematic.”
  2. [“Keep Moving” Orders & Right to Assembly]: “Unified command created a vague and arbitrary derivative of the Missouri failure to disperse statute—the ‘keep moving’ order, or ‘five-second rule,’ which violated citizens’ right to assembly and free speech, as determined by a U.S. federal court injunction.”
  3. [Police Discouraged Protests]: “Unified command failed to establish a clearly marked First Amendment free speech zone until August 19, 2014. This delay, coupled with the ‘keep moving’ order, had an overall effect of discouraging protesters from exercising their First Amendment rights.”
  4. [Police Removal of Badges]: “During the law enforcement response to the protests, some officers removed their nameplates. This behavior defeated an essential level of on-scene accountability that is fundamental to the perception of procedural justice and legitimacy.”
  5. [Suspicious Lack of Citizen Complaints]: “[G]iven the size and scope of the protest and the findings outlined within this report, the limited number of filed complaints is misleading. Other factors that made it difficult or impossible to lodge complaints— or a lack of confidence in the complaint process— likely deterred citizens from filing complaints about police behavior.”
  6. [Press Arrests]: “Controversy over police tactics also heightened on August 13, when two news reporters from The Washington Post and The Huffington Post were arrested in a restaurant near the protests. The visibility of these arrests drew more negative attention toward police practices. Allegations of the police abusing their authority and violating citizens’ civil rights were common.”
  7. [The Need for Effective Protocols]: “[T]here were no effective protocols in place to handle an event like this; if such protocols had been in place, they would have identified the appropriate police resources and procedures for the event to accompany the mutual aid agreements.”
  8. [The Need for Planning]: “Even with the best planning for a police response to a protest, the nature and evolution of a protest, factors collaterally related to the protest, and the effectiveness of tactics and strategies must be constantly monitored and changed to reflect the changing protest management environment.”
  9. [Reasonable Accommodations for Protests]: “As a statement of principle to ensure procedural justice, law enforcement should provide all lawful and reasonable accommodation and support to facilitate the First Amendment expressive activity of citizens. Great restraint of police powers should be used to protect the rights of lawful demonstrators, while at the same time protecting the safety and rights of citizens whose persons and property are contiguous to the demonstration. In cases when the safety and rights of others are in jeopardy from the demonstration activities, law enforcement should propose alternate accommodations to protesters.”
  10. [Free Speech Zones] “A First Amendment free speech zone set up by authorities as an area where groups could congregate to demonstrate should be clearly established, allowing for reason- able accessibility to the media. Free speech zones such as the “protester assembly zone” (also called the “approved assembly area”) established by police in Ferguson pursuant to the Abdullah case are designated zones in public areas set aside by authorities in which people may exercise their First Amendment rights. Use of zones requires government to strike an appropriate balance between public safety concerns and First Amendment freedoms, because First Amendment activity is permitted only in the designated zone.”
  11. [Need for Constitutionally Sensitive Police Policies] “It is essential that law enforcement establish and apply procedures that comply with statutory and constitutional requirements. Legal counsel should be consulted and involved when establishing policies, procedures, and tactics that could infringe on or impact constitutional protections.”
  12. [Balancing Public Safety with Right to Protest]: “While law enforcement must meet its duty to protect people and property during mass demonstrations and protests, it can never do so at the expense of upholding the Constitution and First Amendment-protected rights.”
  13. [Need for Police Training: Lawful vs Unlawful Assembly]: “Officers should have been educated or reminded of the difference between a violation of Missouri’s unlawful assembly, riot, and failure to disperse laws versus lawful assembly and the protections of the First Amendment that could make an order to disperse to be in and of itself illegal. Law enforcement should have been more aware of how its response had a chilling effect on the protesters exercising their First Amendment rights.”
  14. [Need for Police Training: First Amendment Education]: “Agencies should train all officers on the nature of the First Amendment and the protections it affords, including what is a lawful protest, how law enforcement should deal with lawful protests, and what are best practices for policing crowds.”
  15. [Methods for Processing Citizen Complaints]: “Law enforcement agencies should establish multiple methods for submitting complaints/commendations (in person, by phone, online, etc.) that are easily accessible, efficient, effective, and not intimidating to the public to ensure that citizen complaints are received, fairly investigated, and adjudicated. Agencies should review these methods periodically to stay current with technology and generational changes.”
  16. [Communicating with Protestors]: “Law enforcement must reach out to protest leaders to understand the protesters’ issues and establish an understanding of police responsibilities for managing the safety and security of protesters and the community.”
  17. [Improving Lines of Communication]: “Lines of communication between law enforcement and protest leaders should remain open and consistent not only throughout the protest but also after the protest to ensure effective communications to prepare for future protests and to ensure a relevant ongoing dialogue between the protesters and the police occurs.”
  18. [Timely Release of Public Information]: “Law enforcement should establish a practice to release all information law- fully permitted as soon as possible and on a continuing basis, unless there is a compelling investigatory or public safety reason not to release the information. A ‘compelling reason’ should be narrowly defined and limited in scope. Had law enforcement released information on the officer-involved shooting in a timely manner and continued the information flow as it became available, community distrust and media skepticism would most likely have been lessened.”
  19. [Cell Phone Photography & Accountability] “Social media—from video streams to cell phone videos to photographs— can be a strong accountability tool when used to document the behavior of not only police officers but also demonstrators.”

In light of the above, tomorrow I will post a piece entitled “Teaching First Amendment Law in Reality-Friendly Ways.”

Bookstore Owner & Free-Speech Defender Joyce Meskis to be Honored

Joyce Meskis has been one of the outstanding leaders in the fight for free speech. Over four decades, she put herself and her store on the line to challenge bad laws, a dangerous constitutional amendment, and a search warrant that threatened the privacy of customer records — and that was just in Colorado. As a leader of the American Booksellers Association during the 1980s and 1990s, she inspired her industry to fight censorship at a dangerous time. Chris Finan, Director, American Booksellers for Free Expression

Joyce Meskis (credit: Colorado Life Magazine)

Joyce Meskis (credit: Colorado Life Magazine)

Her name is Joyce Meskis. For 41 years she has been the owner of one of the most famous independent bookstores in America — the Tattered Cover Book Store in Denver (video here). Anyone who knows anything about books knows her name, along with those of Carla Cohen and Barbara Meade, the longtime owners of Politics and Prose Bookstore in Washington, D.C. Those three women have had an enormous impact on book life in America.

Last March Ms. Meskis announced her plans to retire. “It was a confluence of circumstances,” Meskis told Aldo Svalsi of the Denver Post. “It has always been tough,” Meskis added. “It is a challenge every day of the week. . . . Len Vlahos and his wife, Kristen Gilligan, . . . joined the senior management team of Tattered Cover on July 1 and will acquire a controlling interest two years later.”

Known as “Denver’s literary lioness,” Joyce Meskis will be honored on October 9th at a Denver fundraiser for the Colorado Freedom of Information Coalition. (For more information, e-mail:

Among her many accomplishments, the 73-year-old ACLU member is perhaps best known for her robust defense of the First Amendment rights of readers. As Keith Lewis put it in an August 21, 2015 article in  The Docket:

Years ago Joyce Meskis, Owner of the Tattered Cover Book Store since 1974, stood up to federal and local law enforcement to defend the First Amendment rights of her customers. In exercising her own right to freedom of expression, Meskis achieved a unanimous ruling out of Colorado’s highest court, whereby a third-party bookstore is now entitled to a hearing before a warrant seeking its customers’ records can be executed. 

 The case: Tattered Cover v. City of Thorton (Colorado Supreme Court, 2002) (see here re a documentary about the case)

Joyce Meskis was the recipient of the “William J. Brennan, Jr. Award from the The Thomas Jefferson Center for the Protection of Free Expression, the PEN/Newman First Amendment Award, the Brandeis Award from Privacy International, and the ALA IFRT Phillip Immroth Memorial Award.”

Meskis was also a former board member of Freedom to Read Foundation, the American Booksellers Foundation for Free Expression, and a founder of Colorado Citizens Against Censorship.

Thank you for your unwavering commitment to the First Amendment and its principles of free expression and free access to information. — Gordon M. Conable (President) & Judith F. Krug (Executive Director), Freedom to Read Foundation, June 2002

On other free-speech fronts, in 1991 Ms. Meskis, then President of the American Booksellers Association, testified against the Pornography Victims Compensation Act. (See Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (1995)).

Selected News Items 

Newseum Institute to Host Police Body Cam Discussion

300x181xCalendar_police_cam-300x181.jpg.pagespeed.ic.5SpSqvGxwNOn September 16th the Newseum Institute in Washington, D.C., will host a  panel discussion to examine the various ways in which U.S. cities and states are incorporating police body cameras to hold officers accountable and build public trust.Panelists will also discuss the future of police body cameras in the District of Columbia. The 2:30 pm event — titled “Cameras, Cops & Accountability” — is free to the public, but registration is required. The program is presented by the Newseum Institute in cooperation with D.C. Open Government Coalition,

Panelists include:

  • Katie Townsend, litigation director, Reporters Committee for Freedom of the Press
  • Monica Hopkins-Maxwell, executive director, ACLU of the Nation’s Capital
  • Gene Policinski (moderator), chief operating officer, Newseum Institute
  • Kevin Goldberg (moderator), First Amendment attorney, Fletcher, Heald & Hildreth

Abstract: Cities and states across the country are experimenting with the use of police body cameras as a way of holding law enforcement officers accountable and building public trust in government. But proposed and existing body camera policies vary greatly, especially with regard to public accessibility to the recordings themselves. Washington, D.C., itself has wrestled with these issues, as Mayor Muriel Bowser’s proposed budget for 2016 included $5 million to be spent on police body cameras but also exempted all recordings from the city’s Freedom of Information Act. The D.C. Council rejected that proposal; now government officials and interested citizens and organizations are trying to balance the need for public access with the privacy implications and financial expense of providing access. This program will include a discussion of those issues, looking at the national landscape and the specific local proposals.

For more information, go here.

Teacher’s Blog Comments Unprotected by First Amendment says Third Circuit

The case is Munroe v. Central Bucks School District, which was recently decided by a divided vote of a panel of judges on the Third Circuit. As Professor Ruthann Robson observed, a majority “found that a public school teacher’s blog posts about students did not ‘rise to the level of constitutionally protected expression’ under the First Amendment and thus they could be the basis of her termination. Agreeing with the district judge, the majority thus concluded that the balancing test of  Pickering v. Board of Education (1968) was not satisfied.”

Judge Thomas Ambro

     Judge Thomas Ambro

The majority opinion was written by Circuit Judge Robert Cowen and joined in by Jane A. Restani, a senior Judge for the United States Court of International Trade, sitting by designation.

Circuit Judge Thomas Ambro dissented: “I have no doubt the School District was well aware that firing Munroe for her blog posts and media tour would land it in constitutional hot water. More than enough evidence suggests that firing her on performance grounds was a pretext for its real reason—she had spoken out to friends on a blog, it became public, School District officials were upset and proposed her termination, they decided to wait, the once- sterling evaluations of Munroe immediately became negative, and she was fired. The bottom line: too many signs suggest this was all a set-up that a jury needs to sort out.”

Headline: “Woman pleads guilty in nation’s 1st federal animal crush video case”

This from a news story by Cindy George in the Houston Chronicle: “One of the first persons in the nation to face federal charges under the Animal Crush Video Prohibition Act of 2010 pleaded guilty in Houston on Tuesday and may become a government informant on sex trafficking crimes. Ashley Nicole Richards, 24, admitted to four counts of creating animal crush videos and one film distribution charge. . . .”

“In the films, a scantily clad Richards, sometimes masked, can be seen stabbing animals – including a puppy, a kitten and a chicken – as well as chopping off their limbs and urinating on them while making sexual comments to the camera. In one of the videos seized by authorities, Richards punctured a cat’s eye with a shoe heel. A kitten was killed in a crush series in which she starred and that was filmed, prosecutors allege, by [Brent] Justice.”

“. . . Richards faces a federal sentence of up to seven years. . . .”

Campus Free-Speech Watch

→ Eugene Volokh, “State university promising to “evaluate” student’s Tweet critical of murdered police officer,The Volokh Conspiracy,” Sept. 7, 2015

  1. Vanessa McCray, “After Rove dustup, UT issues free speech rules,” The Blade, Sept. 8, 2015
  2. Nicole Roberts, “Expanding free speech on MSU’s campus,” The Standard, Sept. 8, 2015
  3. Max Grossfeld, “New Law Granting Student Journalists First Amendment Rights Takes Effect,” KFYR TV 5, Sept. 7, 2015
  4. Rob Jenkins, “Higher education continues setting fire to free speech rights,” Gwinnett Daily Post, Sept. 5, 2015
  5. Alex Morey, “Radley Balko On The ‘Terrifying’ New Threat to Free Speech in America,” FIRE, Sept. 4, 2015
  6. Jason Lisk, “College Sports Social Media Bans Could Violate First Amendment,” USA Today, Sept. 2, 2015
Professor Alexander Tsesis

Professor Alexander Tsesis

Symposium on Free Speech and Constitutional Values

The University of Illinois Law Review Slip Opinions recently published a symposium that features responses to “Free Speech Constitutionalism” by Professor Alexander Tsesis. The contributors are:

  1. David S. Han, “The Value of First Amendment Theory
  2. Mark A. Graber, “Harperooning, Groeing and Browning the First Amendment
  3. Helen Norton, A Few Thoughts on Free Speech Constitutionalism
  4. Margot E. Kaminski, “The First Amendment’s Public Relations Problem: A Response to Alexander Tsesis’s Free Speech

New & Forthcoming Scholarly Articles & Review Essays 

  1. Ronald Krotoszynski, Jr., “Free Speech Paternalism and Free Speech Exceptionalism: Pervasive Distrust of Government and the Contemporary First Amendment,” Ohio State Law Journal (2015)
  2. Daniel Morales, “‘Illegal’ Migration is Speech,” SSRN (Sept. 5, 2015)
  3. Anika Hermann Bargfrede, “Demolishing the Schoolhouse Gate: Tinkering with the Constitutional Boundaries of Punishing Off-Campus Student Speech,” University of Illinois Law Review (2015)

News, Op-eds, and Blog Posts 

Tiffany Demasters, “ACLU files lawsuit on behalf of animal activists facing charges after protest outside Lagoon,Fox13 (Salt Lake), Sept. 8, 2015

  1. Aretha Franklin Judge Shows No R.E.S.P.E.C.T. for First Amendment (Analysis),” The Hollywood Reporter, Sept. 8, 2015
  2. Beatrice Verhoeven, “Copyright Lawyer Calls Aretha Franklin Injunction ‘Outrageous,‘” The Grill, Sept. 5, 2015

New YouTube Posts

  1. Radley Balko on Threats to Civil Liberties & Free Expression,” FIRE, Sept. 4, 2015
  2. Authorities Investigating online videos inciting violence against officers,” KPRC2, Sep. 3, 2015


The Court’s 2015-2016 First Amendment Docket 

Review Granted

  1. Friedrichs v. California Teachers Association, et al.

Pending Petitions*

  1. Center for Competitive Politics v. Harris
  2. Yamada v. Snipes

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 #75: “Justice Kagan & the future of Abood, the strength of stare decisis, & the relevance of Garcetti

Next Scheduled FAN #77: Wednesday, September 16, 2015

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