FAN 81 (First Amendment News) Parody Prevails, Copyright Challenge Fails — the Play Goes On

David Adjmi

David Adjmi

David Adjmi is an accomplished playwright. Three years ago one of his plays, 3C, was performed at the Rattlestick Playwrights Theater. The New York Times described it as a “darkly comic deconstruction of the 1970s sitcom Three’s Company.” But DLT Entertainment Ltd., (the sitcom’s copyright owner) didn’t appreciate the humor, so its lawyers sent out a  cease-and-desist letter. The claim was that Mr. Adjmi had borrowed too much. Though the play went on, the suit did too. The question was whether there was a First Amendment parody and fair use privilege to do what Adjmi did.

That question was answered recently by United States District Court Judge Loretta A. Preska who ruled that “despite the many similarities between the [play and the sitcom], 3C is clearly a transformative use” and thus can be performed, published, and licensed.

Bruce Johnson

Bruce Johnson

At first Mr. Adjmi was tempted to give in to DLT Entertainment Ltd’s demands because he lacked the money to stay in the legal fight. The plot then thickened: Patrick Healy, then theatre reporter for the New York Times, was incensed, so he “started a petition on Adjmi’s behalf, which was signed by many in the industry, including some fancy people, too, like Stephen Sondheim and Aaron Sorkin and Tony Kushner.”

Enter Bruce Johnson, a noted First Amendment lawyer at Davis Wright Tremaine. The turning point came when Mr. Johnson and his firm took on the case, pro bono. They won it. As Mr. Johnson told American Theatre“We took this on a pro bono basis because we care deeply about the theatre,” and felt that “meritless legal claims should not be used to block free speech.” As he saw it, “DLT was hoping that its greater financial resources would overmatch whatever legal help David [Adjmi] could find, if anyone.” That disturbed Johnson “because it was clearly intended to have an effect on David and his efforts to protect his free speech rights.”

In the words of the Bard, “all’s well that ends well.” (See below)

Performance & Panel Discussion ←

The Arts Integrity Initiative at The New School College of Performing Arts, School of Drama, will present the first public reading of David Adjmi’s 3C, following the work’s landmark legal victory. Directed by Jackson Gay, this is the first public performance of 3C following the landmark legal victory.

A panel discussion hosted by playwright and New School faculty member Jon Robin Baitz will include attorney Bruce Johnson and David Adjmi, speaking publically for the first time, about 3C’s journey since its world premiere in June of 2012 at Rattlestick Playwrights Theater.


WHERE: The New School Auditorium – 66 W. 12th Street New York City, New York


Abortion Buffer Zone Ordinance Invalidated

Recently, it has been reported, the Thomas More Law Center (TMLC) “obtained a federal court consent judgment against the City of Portland, Maine, which declared the City’s ordinance designed to prohibit pro-life counseling within 39-feet of any entrance, exit, or driveway to the Planned Parenthood clinic violated the First Amendment. U.S. District Court Judge, Nancy Torresen, entered the Consent Judgment October 8, 2015.”

In November 2013, Portland City Council enacted the 39-foot “buffer zone,” which created a prohibited speech zone around the entire building that houses Planned Parenthood’s abortion clinic. TMLC filed a federal lawsuit to challenging the constitutionality of the ordinance.

 Erin Kuenzig was the attorney who argued the case for TMLC.

Rushdie Speaks out on Free Speech 

photo credit: The Guardian

photo credit: The Guardian

This from a Reuters news story: “Violence against writers and a misplaced sense of political correctness pose new dangers to freedom of speech in the West, writer Salman Rushdie said on Tuesday. Rushdie, the subject of an Iranian death threat in 1989 for his book The Satanic Verses, which was deemed blasphemous by many Muslims, said he had not expected freedom of expression to come under attack again to this extent in the western world.”

‘It seems to me the battle for free expression was won 100 years ago,’ the 68-year-old told an audience at the opening of the Frankfurt Book Fair, under heavy security. ‘The fact that we have to go on fighting this battle is the result of a number of regrettable, more recent phenomena.'”

“Limiting freedom of expression is not just censorship, it is also an assault on human nature,” Rushdie told a news conference. . . “Without that freedom of expression, all other freedoms fail,” he said.

See also: Christopher Shea, “Rushdie Condemns Censorship as Iranians Boycott Frankfurt Book Fair,” New York Times, Oct. 13, 2015

Cornell’s President tags herself “an avid supporter of freedom of speech”

President Elizabeth Garrett

President Elizabeth Garrett

According to a New York Post editorial, Cornell University’s new president, Elizabeth Garrett, tagged herself “‘an avid supporter of freedom of speech.'” Not surprisingly, she “came out firmly against politically correct censorship last week. . . Meeting with several reporters at a Cornell Club breakfast, Garrett [a former law clerk to Justice Thurgood Marshall] said:

A university is about the fullest and freest expression of ideas and arguments. There isn’t any idea that ought not to be tested and questioned. Because that’s how we get closer to the truth. We’re about reason, rationality, debate. So if you disagree with someone, the answer isn’t to shut them down . . . I don’t believe there should be any limits on the substance of freedom of speech at a university.

The Post editorial continued: “Garrett directly condemned the idea of ‘trigger warnings’ — that is, the claim that professors should alert the kiddies before exposing them to ideas or, worse, literature that might upset them: ‘What a professor chooses to do in his or her class has my absolute support, even if I don’t agree with them.'”

Aside: Floyd Abrams is a 1956 graduate of Cornell University, where he studied under a noted political science professor who taught constitutional law, and where young Abrams once won a debate contest arguing against a free press claim.

Campus Free-Speech Watch

College censorship in America out of control?,” FoxTV Business News, posted Oct. 12, 2015 (John Stossel on campus censorship in America)

  1. Brendan O’Neill, “Baby Boomers Share Blame for Today’s Censorship-Happy Students,”, Oct. 13, 2015
  2. Editorial, “Butler University replaces journalism advisor with campus PR rep, free speech compromised,” The Daily Campus, Oct. 12, 2015
  3. Geoffrey Stoone & Will Creeley, “Restoring free speech on campus,” Twin Cities Pioneer Press, Oct. 11, 2015
  4. Emily Shire, “Freedom of Speech? Not At Brown University,” The Daily Beast, Oct. 10, 2015
  5. Joe DiPietro, “You Can’t Handle The Truth: The Importance of Free Speech on Campus,” The Georgetown Voice, Oct. 8, 2015
  6. David Palumbo-Liu, “Free speech for all on campus! Unless you’re criticizing Israel, that is,” Salon, Sept. 30, 2015

Christina Cauterucci, “It’s Guns vs. Dildos in UT Austin Protest Against ‘Campus Carry’ Law,” XX Factor, Oct. 12, 2015 (“Texas’ new ‘campus carry’ law won’t take effect until next August, but students are already primed to protest one phallic symbol with another. When the 2016 fall semester begins, University of Texas alumna Jessica Jin wants to see legions of dildos parading across the quad.”)

Forthcoming: Online Symposium on Citron’s Hate Crimes in Cyberspace

BULR-Annex-Texture-636x289The Boston University Law Review Annex will soon publish a series of commentaries on Professor Danielle Citron’s much-noticed book Hate Crimes in Cyberspace. Here is the publication schedule for the first week of the online symposium, which is edited by James Tobin, the online editor of Annex.

  • 10/19 — Danielle Citron, “Online Engagement on Equal Terms”
  • 10/20 — Helen Norton, “Cyberharassment and Workplace Law”
  • 10/21 — Ronald Collins, “The Liberal Divide & the Future of Free-Speech Law”
  • 10/22 — Ari Waldman, “Amplifying Abuse: The Fusion of Cyberharassment & Discrimination”
  • 10/23 — Robin West, “A Comment on Danielle Citron’s Hate Crimes in Cyberspace”

New & Forthcoming Scholarly Articles 

  1. Danielle Keats Citron, “Online Engagement on Equal Terms,” SSRN (Oct. 9, 2015)
  2. Margot E. Kaminski, “The First Amendment’s Public Relations Problem: A Response to Alexander Tsesis’s Free Speech Constitutionalism,”  SSRN (Oct. 5, 2015)
  3. Teneille R. Brown, “In-Corp-O-Real: A Psychological Critique of Corporate Personhood and Citizens United,” SSRN (Oct. 7, 2015)
  4. Micah L. Berman, “Clarifying Standards for Compelled Commercial Speech,” SSRN (Oct. 5, 2015)

New & Notable Blog Posts

I regret to say that my own institution, UCLA, is likely violating the First Amendment in its reaction to a recent fraternity and sorority party. As Susan Svrluga (Grade Point, Washington Post) reported Thursday: “A fraternity-sorority party sparked protests at the University of California at Los Angeles after some students said the theme and costumes were racist, such as guests who apparently smeared charcoal on their foreheads to darken their faces.” UCLA is both investigating the matter, and has suspended the fraternity and sorority’s social activities for the duration of the invstigation . . .  But the suspension of the fraternity and sorority is likely unconstitutional. Costumes that convey a message are treated as speech for First Amendment purposes (see, e.g., Schacht v. United States (1970) and Cohen v. California (1971)). And a university may not punish speech based on its allegedly racist content; see, e.g., Rosenberger v. Rector (1995), which holds that a university may not discriminate against student speech based on its viewpoint.

News, Op-eds, Blog Posts, & Book Reviews

Meredith Hobbs, “Duane Morris Lands Veteran First Amendment Lawyer,” Daily Report, Oct. 7, 2015

  1. Mark Hamblett, “Political Sign Ordinance Said to Violate First Amendment,” New York Law Journal, Oct. 13, 2015
  2. Brad Wong, “Judge: Texas Labor Protest Is Protected Free Speech,” Equal Voice, Oct. 13, 2015
  3. Francis Wilkinson, “Justice Kennedy’s Political Casino,” Bloomberg, Oct. 11, 2015
  4. Wayne L. Trotta, Book Review: “The Poetry of the First Amendment,” Moyers & Co., Oct. 8, 2015 (reviewing Madison’s Music by Burt Neuborne)
  5. Eric Mann, “Street preacher alleges First Amendment infringement in Foley,” Lagniappe, Oct. 7, 2015

YouTube Video

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 last Conference was 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 #80: “Coming Soon: Philippa Strum’s Book on Whitney v. California

Next Scheduled FAN #82: Wednesday, October 21, 2015.

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