FAN 80 (First Amendment News) Coming Soon: Philippa Strum’s Book on Whitney v. California

Those familiar with American legal history, including its free-speech history, know the name Philippa Strum. The senior scholar at the Wilson Center is the author of, among other books, Louis D. Brandeis: Justice for the People (1984) and When the Nazis Came to Skokie (1999). Her latest book comes out early next month and is entitled Speaking Freely: Whitney v. California and American Speech Law. The book is being published by the University Press of Kansas and is part of the Landmark Law Cases and American Society. Here is the publisher’s abstract of the book:

51N0zk7v72L._SX319_BO1,204,203,200_“Anita Whitney was a child of wealth and privilege who became a vocal leftist early in the twentieth century, supporting radical labor groups such as the Wobblies and helping to organize the Communist Labor Party. In 1919 she was arrested and charged with violating California’s recently passed laws banning any speech or activity intended to change the American political and economic systems. The story of the Supreme Court case that grew out of Whitney’s conviction, told in full in this book, is also the story of how Americans came to enjoy the most liberal speech laws in the world.”

“In clear and engaging language, noted legal scholar Philippa Strum traces the fateful interactions of Whitney, a descendant of Mayflower Pilgrims; Supreme Court Justice Louis D. Brandeis, a brilliant son of immigrants; the teeming immigrant neighborhoods and left wing labor politics of the early twentieth century; and the lessons some Harvard Law School professors took from World War I-era restrictions on speech. Though the Supreme Court upheld Whitney’s conviction, it included an opinion by Justice Brandeis — joined by Justice Oliver Wendell Holmes, Jr. — that led to a decisive change in the way the Court understood First Amendment free speech protections. Speaking Freely takes us into the discussions behind this dramatic change, as Holmes, Brandeis, Judge Learned Hand, and Harvard Law professors Zechariah Chafee and Felix Frankfurter debate the extent of the First Amendment and the important role of free speech in a democratic society. In Brandeis’s opinion, we see this debate distilled in a statement of the value of free speech and the harm that its suppression does to a democracy, along with reflections on the importance of freedom from government control for the founders and the drafters of the First Amendment.”

“Through Whitney v. California and its legacy, Speaking Freely shows how the American approach to speech, differing as it does that of every other country, reflects the nation’s unique history. Nothing less than a primer in the history of free speech rights in the US, the book offers a sobering and timely lesson as fear once more raises the specter of repression.”

Philippa Strum is arguably the leading Brandeis scholar of the last fifty years. Justice Brandeis’s opinion in Whitney v. California is arguably the most inspiring and enduring judicial account ever of the reasons for a strong free speech principle. It seems only natural that Philippa Strum should write the definitive book on Whitney v. California. And she has done just that, uncovering much new material about Anita Whitney and those who prosecuted and defended her. This fascinating book is truly worthy of Brandeis, who relished resourceful factual investigation, instructive analysis, and lucid writing. — Vincent Blasi

Other books in the Landmark Law Cases and American Society series dealing with free speech include:

  1. Whitney Strub, Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression (2013)
  2. Max Lender, Gitlow v. New York: Every Idea an Incitement (2012)
  3. Kermit Hall & Melvin Urofsky, New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press (2011)
  4. Robert Justin Goldstein, Flag Burning and Free Speech: The Case of Texas v. Johnson (2000)
  5. John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (1997)

Guns on Campus — Free Speech Under Fire? 

Justice Scalia in District of Columbia v. Heller: “[The Court’s decision] “should not be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.

Oregon is one of the seven states that now have provisions allowing the carrying of concealed weapons on public post-secondary campuses. (See Auyero commentary below)

* * * *

Guns-and-Free-Speech Tyler Kingkade, “Texas Professors Warn Allowing Guns In Class Will Inhibit Free Speech,” Huffington Post, Oct. 5, 2015

Greg Piper, “‘Ad hominem’ attacks on gun-rights supporters convince University of Texas student to back concealed carry,” The College Fix, Oct. 6, 2015

Mike Spies, “Texas Professor Warns That Guns in Classrooms Could Dumb Down Provocative Lessons,” The Trace, Oct. 6, 2015

Anthony Hennen, “UT chancellor: Removing gun-free zones will “inhibit our freedom of speech,” Red Alert Politics, Oct. 5, 2015

→ Javier Auyero, “What the ‘campus carry’ law means for higher education,” Fortune, Oct. 5, 2015

Jim Vertuno, “University of Texas holds forum on concealed guns on campus,” Washington Times, Sept. 30, 2015

Jennifer Sinor, “Guns on Campus Have Already Curtailed Free Speech,” The Chronicle of Higher Education, Oct. 27, 2014

Court sustains First Amendment claim in occupational licensing case

Judge Gregory F. Van Tatenhove

Judge Gregory F. Van Tatenhove

The case is Rosemond v. Markham (E. Dist. KY, Sept. 30, 2015). Here is how the opinion by Federal District Court Judge Gregory Van Tatenhove begins: “For nearly forty years, John Rosemond has written a newspaper column on parenting. No other newspaper column written by a single author has run longer. Now, in an exercise of regulatory zeal, the Kentucky Board of Examiners of Psychology seeks to prohibit Rosemond from publishing his column in Kentucky while referring to himself as a ‘family psychologist.’ In an effort to avoid the State’s enforcement of K.R.S. § 319.005, the State’s statute regulating the practice of psychology, Rosemond protectively filed this action in which he asks that the Board be permanently enjoined from interfering with the publication of his column.”

Here is some more information re the facts in the case: “On February 12, 2013, the Herald-Leader ran one of Rosemond’s columns entitled ‘Living with Children.’ In the piece, Rosemond advised that the teenager in question, who he referred to as a ‘highly spoiled underachiever,’ was ‘in dire need of a major wake-up call.’ He proceeded to describe what actions might be taken to inspire this ‘wake-up call,’ including taking away electronics and suspending him of privileges until he improved his grades. The article bore the tagline: ‘Family psychologist John Rosemond answers parents’ questions on his website at www.rosemond.com.'”

Plaintiff John Rosamond

Plaintiff John Rosamond

Plaintiff’s Claim: “Rosemond argues the Board’s regulation of the advice he provides in his column amounts to a content-based restriction that warrants strict scrutiny.  The Board contends the restriction is not content-based, and is only a restriction on either commercial or professional speech. Rosemond is right.”

 Court’s Ruling: “Rosemond’s speech is neither commercial, nor professional. Instead, the Board used K.R.S. § 319.005 to restrict Rosemond’s speech because it took issue with the message he was conveying. Such government regulation is content-based, and only constitutional if it survives strict scrutiny.”

“. . . Even if, as the Board claims, Rosemond is potentially misleading readers by holding himself out as a psychologist, he retains the First Amendment right to make those statements in a non-commercial setting. K.R.S. § 319.005 bans individuals from using the term ‘psychologist ‘s a way that is deceptive. According to the Board, ‘[t]he evidence in this case supports the ban that the unqualified use of those terms as potentially misleading, to the public’s detriment.’  While not a licensed psychologist in Kentucky, Rosemond does hold a master’s degree in psychology and is a licensed ‘psychological associate’ in North Carolina. With this title, also comes authorization under North Carolina law to describe himself as a ‘psychologist.’ Ultimately, however, the Board’s restriction is subject to strict scrutiny even if what Rosemond said were false or misleading.”

“As the Board has imposed ‘content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.’ Reed v. Town of Gilbert.”

“. . . . Rosemond is entitled to express his views and the fact that he is not a Kentucky-licensed psychologist does not change that fact. If the facts were different, had Rosemond represented himself to be a Kentucky-licensed psychologist or had he actually entered into a client-patient relationship in Kentucky, the outcome might be different. In the case at hand, he did not. All he did was write a column providing parenting advice to an audience of newspaper subscribers.”

→ Court Order: “The Board is PERMANENTLY ENJOINED from enforcing these laws in an unconstitutional manner against Rosemond or others similarly situated . . . .”

Second Circuit to hear First Amendment challenge to Vermont’s GMO Labeling Law 

The case is Grocery Manufacturers Association et al v. Sorrell (14-1504-cv), which will be argued before a panel of the Court of Appeals for the Second Circuit on Thursday, October 8, 2015 at 10:00 a.m. in the Thurgood Marshall Courthouse in New York.

The Plaintiffs are challenging Vermont’s state GMO labeling law on First Amendment grounds (complaint here). The Vermont law requires that certain manufacturers and retailers identify whether raw and processed food sold in Vermont was produced in whole or in part through genetic engineering and which prohibits manufacturers from labeling or advertising GE foods as ‘natural,’ ‘naturally made,’ ‘naturally grown,’ ‘all natural,’ or ‘any words of similar import.'” Last April a federal district court upheld the law in an 84-page opinion by federal district court Chief Judge Christina Reiss.

Briefs Filed in Second Circuit 

→  Brief of Plaintiffs-Appellants (see also here)

→ Brief of Defendants-Appellees 

→ Amicus Brief of Chamber of Commerce in support of Plaintiffs-Appellants

→ Amicus Brief of Public Citizen, Inc. in support of Defendants-Appellees

Morrison files cert. petition in individual government contractors campaign-finance case

Professor Alan Morrison

Professor Alan Morrison

Alan Morrison, a George Washington University Law School professor and former counsel for Public Citizen’s Litigation Group, recently filed a cert. petition in Miller v. Federal Election Commission. The issue in the case is whether the ban on contributions in 52 U.S.C. § 30119, as applied to individual government contractors such as petitioner, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution. The Court of Appeals for the District of Columbia, sitting en banc, denied those claims in Wagner v. Federal Election Commission (July 7,2015).

Section 30119 prohibits federal government contractors from making contributions, either directly or indirectly, in connection with federal elections. In the petition, Mr. Morrison argues: “Although this petition is brought by only one individual, its resolution is of great importance to the thousands of former federal employees now working as federal contractors and the countless other individuals who have service contracts with the federal government who are barred from making any federal campaign contributions.”No other law forbids citizens who can vote in federal elections from making any contributions to support the candidate, party, or political cause of their choice, let alone doing so while allowing others who are similarly situated to contribute.” Moreover, he adds: “while the holding below is not inconsistent with the holding in McCutcheon because McCutcheon was not a federal contractor, the outcomes – the individual plaintiff there can contribute millions of dollars in federal elections, but these plaintiffs cannot contribute a dollar – are very difficult to reconcile under most basic notions of fairness.” Against that backdrop, he argues: “There are three important subsidiary questions within the question presented by the petition that have not been, but should be, decided by this Court.”

  1.   “When a campaign finance law is alleged to deny Equal Protection, and the primary defense is that other persons not subject to the law are not similarly situated to the challengers, must the question of comparability be determined by focusing on the asserted purpose of the law and the connection between each group and the law?”
  2.   “When Congress forbids individual citizen-voters from making any contributions in federal elections, should ‘strict scrutiny’ rather than the ‘closely drawn’ standard apply?”
  3.   “Even if the closely drawn standard applies, what is the proper means of assessing the fit of the ban, where contractor restrictions in other laws are much less sweeping and are limited to contracts that raise concerns that form the core of the reason for the law?”

New York Law School hosts conference on “combatting cyberharassment” 

Last week New York Law School hosted The Internet Safety Conference; the conference’s theme was “combatting cyberharassment in all its forms.” At the conference the Law School launched a first-of-its-kind direct outreach pro bono initiative that will help victims of online harassment obtain justice.

List of Speakers

  1. U.S. Congresswoman Kathleen Rice (D-NY)
  2. U.S. Congressman Mark Pocan (D-WI)
  3. Kathleen McGee, Chief, Internet Bureau, Office of the Attorney General of the State of New York
  4. Elisa D’Amico, Founder, Cyber Civil Rights Legal Project at K&L Gates
  5. Jane Clementi and Joseph Clementi, Co-Founders, Tyler Clementi Foundation
  6. Danielle Keats Citron, University of Maryland School of Law, Author of Hate Crimes in Cyberspace 
  7. Ann Bartow, University of New Hampshire School of Law
  8. Frank Pasquale, University of Maryland School of Law, Author of The Black Box Society 
  9. Lawrence Newman, Chief, Domestic Violence Unit, Manhattan DA’s Office
  10. Jacqueline Beauchere, Chief Online Safety Officer, Microsoft
  11. Marissa Shorenstein, President, AT&T New York
  12. Carrie Goldberg, C.A. Goldberg, PLLC
  13. Holly Jacobs, Founder, Cyber Civil Rights Initiative
  14. Lois Herrera, Chief Executive Officer, Office of Safety and Youth Development, New York City Department of Education
  15. Mark Hatzenbuehler, Assistant Professor, Mailman School of Public Health, Columbia University
  16. Remington Gregg ’10, Legislative Counsel, Human Rights Campaign
  17. Nancy Gifford, Senior Director, Law & Policy, iKeepSafe.org
  18. Cynthia Lowen, Producer and Writer of the 2011 documentary film Bully
  19. David Bryant, Regional Associate for State Education, New York State Department of Education
  20. Steven M. Freeman, Director, Legal Affairs, Anti-Defamation League
  21. Scott Skinner-Thompson, Acting Assistant Professor, NYU School of Law
  22. Kate Bertash, Founder, undox.me

Vanderbilt Law Review’s En Banc Roundtable on Williams-Yulee v. The Florida Bar

Contributors & Titles 

  1. The Absent Amicus: “With Friends Like These . . .” by Robert M. O’Neil
  2. Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar by Ruthann Robson
  3. Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections by Chris W. Tonneau & Shane M. Redman
  4. Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality by David W. Earley & Matthew J. Melendez
  5. Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar by Stephen J. Ware
  6. The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech by Charles Gardner Geyh
  7. What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office by Burt Neuborne
  8. Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections by Michael E. DeBow & Brannon P. Denning

Forthcoming Books

  1. Derek Cressman & Thom Hartmann, When Money Talks: The High Price of “Free” Speech and the Selling of Democracy (Berrett-Koehler Publishers, January 11, 2016)
  2. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, April 2016)
  3. Mary M. Cronin & David W. Bulla, editors, An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America (Southern Illinois University Press, March 29, 2016)

51+Rl25QQVL._SX330_BO1,204,203,200_Publisher’s Abstract for An Indispensable Liberty: Most Americans today view freedom of speech as a bedrock of all other liberties, a defining feature of American citizenship. During the nineteenth century, the popular concept of American freedom of speech was still being formed. In An Indispensable Liberty: The Fight for Freedom of Expression in the Nineteenth Century, contributors examine attempts to restrict freedom of speech and the press during and after the Civil War.

The nine essays that make up this collection show how, despite judicial, political, and public proclamations of support for freedom of expression, factors like tradition, gender stereotypes, religion, and fear of social unrest often led to narrow judicial and political protection for freedom of expression by people whose views upset the status quo. These views, expressed by abolitionists, suffragists, and labor leaders, challenged rigid cultural mores of the day, and many political and cultural leaders feared that extending freedom of expression to agitators would undermine society. The Civil War intensified questions about the duties and privileges of citizenship. After the war, key conflicts over freedom of expression were triggered by Reconstruction, suffrage, the Comstock Act, and questions about libel.

The volume’s contributors blend social, cultural, and intellectual history to untangle the complicated strands of nineteenth-century legal thought. By chronicling the development of modern-day notions of free speech, this timely collection offers both a valuable exploration of the First Amendment in nineteenth-century America and a useful perspective on challenges to today’s civil liberties.

Forthcoming Scholarly Article 

Nackey S. Loeb School’s First Amendment event to honor ex-officer, judge

This from the New Hampshire Union Leader: “A veteran Portsmouth police officer who blew the whistle on another officer and was reprimanded for his efforts will be honored as the 13th recipient of the Nackey S. Loeb School’s First Amendment Award next month.The school announced that former Auxiliary Officer John Connors is being cited for his courage in publicly reporting his suspicions that a Portsmouth detective was exercising undue influence on an elderly millionaire who revised her will to include the detective. The changed will was later overturned and the detective — a sergeant — was dismissed. . . .”

New Site: “Rothman’s Roadap to the Right of Publicity” 

Professor Jennifer Rothman has launched a new site (title above). “The right of publicity is a state law,” she notes, “that protects individuals’ identities from being used by others without permission. The boundaries of the claim vary widely from state to state. Rothman’s Roadmap to the Right of Publicity provides an interactive overview of each state’s right of publicity laws, as well as breaking news and commentary by Jennifer Rothman, one of the leading scholars in the field.”

[ht: Eugene Volokh]

Notable Blog Posts

  1. Ruthann Robson, “California Court Upholds Anti-Paparazzi Law Against First Amendment Challenge,” Constitutional Law Prof Blog, Sept. 30, 2015
  2. Eugene Volokh, “California libel retraction statute extended to cover online publications,” The Volokh Conspiracy, Sept. 30, 2015

News, Op-eds & Blog Posts

  1. Walter E. Williams, “Suppressing Free Speech,” TownHall.com, Oct. 7, 2015
  2. Ashley Southall, “Raif Badawi, Imprisoned Saudi Blogger, Is Awarded Free-Speech Prize,” New York Times, Oct. 6, 2015
  3. Emil Guillermo, “Asian-American Rock Band Argues First Amendment in Trademark Battle,” NBC News, Oct. 6, 2015
  4. Jon Brodkin, “How net neutrality violates the First Amendment (according to one ISP),” ArsTechnica, Oct. 6, 2015
  5. Alisha Green, “Battle over net neutrality may redefine free speech,” The Daily Herald, Oct. 6, 2015
  6. Justin Wm. Moyer, “Nice try, but judge rules swinger sex parties unprotected by First Amendment,” Washington Post, Oct. 6, 2015
  7. Devin Neeley, “Farmington settles First Amendment suit over ‘f-word’ for $25k,” KOB Eyewitness News, Oct. 5, 2015 (YouTube video here)

New & Notable Video 

Free Speech Advocate: College Censorship Is Damaging Young Minds,The Daily Caller, Oct. 4, 2015

Abstract: “The battle over free speech is not partisan,” says a proud liberal whose organization helps a wide variety of clients facing free speech threats. He has spent fifteen years in the field as a fearless advocate who worked at the ACLU before coming to the Foundation for Individual Rights in Education (FIRE).”

Greg Lukianoff, the President and CEO of FIRE, starts this 20 minute video interview for The Daily Caller by assessing global issues. “The international situation for freedom of speech is dire,” says Lukianoff, focusing on the emergence of blasphemy laws to not offend Islam.”

The Court’s 2015-2016 First Amendment Docket

Review Granted

  1. Heffernan v. Paterson, N.J. (amicus brief) (see news story here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here)

Review Denied

  1. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Miller v. Federal Election Commission 
  2. Rubin v. Padilla
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority
  4. Center for Competitive Politics v. Harris
  5. Yamada v. Snipes→ Court’s Last Conference: September 28, 2015

The Court’s next Conference is on October 9, 2015,

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 #79: “Conduits and Communication: Is “Mere” Transmission Speech? — Gov. Says No in Net Neutrality Case

Next Scheduled FAN #81: Wednesday, October 14, 2015.

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