FAN 84 (First Amendment News) Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending

It’s been almost 15 years since the Court last heard a First Amendment case involving the press — Bartnicki v. Vopper (2001). That was during the Rehnquist Court era and four of the Justices that sat on that case (Rehnquist, Stevens, Souter, and O’Connor) have been replaced (by Roberts, Alito, Kagan, and Sotomayor). What does that portend for the institutional press? Media lawyers are asking just that question in light of a cert. petition pending before the Court.

The case is Sun-Times Media, LLC v. Dahlstrom. Here are the issues before the Court:

  1. Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
  2. whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
  3. whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
  4. whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”

In his cert petition on behalf of Petitioner, Damon Dunn offered the following First Amendment arguments:

  1. “The Seventh Circuit Destabilized Decades of First Amendment Jurisprudence by Allowing the Press to be Sanctioned for Truthful Reporting on Matters of Public Safety”

a. “The Seventh Circuit adopted a balance that chills speech by allowing a judge to limit First Amendment     protections to the passages deemed most important”

b. “The Seventh Circuit unnecessarily answered the Bartnicki question and got it wrong by shifting the verification burden from the government to the press”

c. “The DPPA cannot withstand constitutional scrutiny if it can be utilized to chill investigative reports on public officials that pose no safety risk to them,” and

d. “The Seventh Circuit undercut constitutional protections for news gathering.”

 → In its brief in opposition, the Solicitor General’s Office argued that

  1. “the doctrine of constitutional avoidance . . .  has no application here. Petitioner’s statutory interpretation is not a plausible one.”
  2. The government also argued that “[t]he only constitutional claim petitioner raises in this Court is an alleged First Amendment right to disseminate information that it unlawfully obtained. As the court of appeals recognized, that claim lacks merit. . . . Each of the decisions that petitioner cites . . . is one in which the information was obtained lawfully by the entity that disseminated it (although the disseminating entity’s source may have originally obtained the information through unlawful behavior in which the entity was not involved). And the cited decisions indicate that the government has strong and legitimate justifications for preventing the dissemination of information by a person who acted unlawfully in obtaining it—including an interest in effectively deterring ‘the initial unlawful acquisition of that same information.'”
Katie Townsend

Katie Townsend

According to Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, “what is particularly troubling about this case is that the 7th Circuit concluded that a newspaper could be held liable under the DPPA both for obtaining information in violation of the DPPA and for publishing that information. From our perspective, this case raises very real concerns about the possible limits of Bartnicki in cases involving the publication of information that a newspaper knows (or in a Court’s view should know) was obtained unlawfully.”

[ht: Tony Mauro]

Floyd Abrams Defends (Most) Donor Disclosure Laws

In a letter to the Wall Street Journal contesting its editorial opposition to donor disclosure laws, Floyd Abrams wrote:

[Y]our opposition to disclosure requirements as reflected in your editorial “Show Us Your Donors” (Nov. 5) is not only at odds with Citizens United but with virtually all Supreme Court rulings in this area and the views of all but one of the present members of that Court. . . .

It is true that if a showing can be made that the effect of disclosure in a particular case would be, as the Court put it in Citizens United, that a “group’s members would face threats, harassment or reprisals if their names were disclosed” that a serious constitutional issue might be raised. But that is the exception, not the norm, and there is no basis to conclude that since disclosure might lead to public criticism, that is reason enough to avoid the obligation to disclose, let alone to hold it unconstitutional. . . . 

 See FAN 83.2 (First Amendment News) “Court Declines to Hear Compelled Disclosure Case”

Quote of the Week . . . from Justice Kennedy re Citizens United

This from Bob Bauer’s More Soft Money Hard Law blog: “Visiting Harvard Law School, Justice Kennedy answered a question about Citizens United by saying ‘what happens with money in politics is not good.’ And he tied certain of these unfortunate effects to that case: the result is not happy.’ Frank Wilkinson of Bloomberg News wondered if the Justice was having ‘second thoughts’ about his campaign finance jurisprudence.The Justice did not say clearly what about the use of money in politics is not good, or in what particular respects the results of Citizens United are not happy.”

[ht: Rick Hasen]

Headline: “Media Banned from Julian Assange Speech at Cambridge Union” 

Julian Assange

Julian Assange

This from Simon Kent at Breitbart:”The Australian, who has been hiding in the Ecuador embassy in London since 2013, will appear before the 200-year-old student-led debating society by video-link, but organisers have issued strict instructions for journalists to stay away”.

“Members of the press are regularly invited to cover union events, which this year celebrated its bicentennial, under the slogan ‘celebrating 200 years of free speech’. Student members of the union recently voted 3 to 1 in a referendum to host the address featuring Mr. Assange, a man committed to openness and transparency in all things except, it seems, the matter of his own opinions. . . .”

“However the student society yesterday issued a statement saying only “student press” will be allowed to attend, according to the Cambridge News.”

Salman Rushdie Accepts Chicago Tribune 2015 Literary Award

Last week Salman Rushdie met last week with Chicago Tribune editorial page editor Bruce Dold at the University of Illinois at Chicago, this as part of the Chicago Humanities Festival.Here are a few excerpts from a Chicago Tribune story:

If you are not a good writer, that’s not your fault — that’s just your problem. But if you are a self-censoring writer, that is your fault because then you are choosing to be a bad writer, and that’s to my mind not forgiven. . . . 

The university is the place where young people should be challenged every day, where everything they know should be put into question so that they can think and learn and grow up. That’s what they are there to do. And the idea that they should be protected from ideas that they might not like is the opposite of what a university should be. In a university, it is ideas that should be protected. It is the discussion of ideas that should be given a safe place. The university should be a safe space for the life of the mind. That’s what it is for.

PEN Hosts “Whistleblower” Program at Newseum

Yesterday, PEN hoisted a program at the Newseum; the program was titled “Secret Sources: Whistleblowers, National Security and Free Expression.”

Those participating in the event were: NSA whistleblower Thomas DrakeJesselyn Raddack of the Whistleblower & Source Protection Program at ExposeFacts, and New York Times reporter James Risen with moderator Susan Glasser of Politico to debate the impact of the Obama administration’s aggressive pursuit of national security leaks on freedom of expression. The issue has gained unprecedented national attention following the 2013 revelations by former NSA contractor Edward Snowden, who will join the event via Skype following the panel in a conversation with PEN Executive Director Suzanne Nossel on whistleblowing and questions of conscience.

logoPanelists discussed the strengths and shortcomings of existing laws and policies intended to protect whistleblowers, and misconceptions about when and how such protections apply. They also considered how recent prosecutions of national security leakers have affected press freedom and public access to information, and then discussed the possible paths forward to reform.

Nadine Strossen Speaks on Free Speech at Harvard’s Kennedy School 

Professor Nadine Strossen (past ACLU president) gave the 2015 Richard S. Salant Lecture on Freedom of the Press at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy (transcript here, video here). The title of her remarks was: “Free Expression: An Endangered Species on Campus?” Here are a few excerpts:

. . . Earlier this year, University of Chicago adopted a powerful re-commitment to campus free speech, precisely to push back against the prevailing suppression.  The statement was drafted by UC’s acting Law School dean, Geoff Stone, who has been a free speech scholar and advocate for almost half a century.  Yet, Geoff recently said, “the level of intolerance for controversial views on college campuses today is much greater than at any time in my memory.”  And I concur with that. . . . 

Sadly though, this [free speech] problem has become even worse since then. Specifically, I’m referring to the overbroad, unjustified concept of illegal sexual harassment as extending to speech with any sexual content that anyone finds offensive.  This distorted concept has recently become entrenched on campus due to pressure from the Department of Education’s Office of Civil Rights, the OCR.  By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools such as Harvard, to adopt sexual misconduct policies that violate many civil liberties, as denounced by an admirable, remarkable open letter that 28 members of the Harvard Law School faculty published last fall, with the signers including distinguished female professors who are lifelong feminist scholars and women’s rights advocates. . . . 

Of course, combating gender discrimination, violence and sexual assault is of the utmost urgency. I hope that goes without saying, but I will underscore it: of the utmost urgency. But, OCR’s distorted concept of sexual harassment actually does more harm than good to gender justice, not to mention to free speech. . . .  

In short, when it comes to safety, our students are being doubly disserved.  Too often, denied safety from physical violence, which is critical for their education, but too often granted safety from ideas, which is antithetical to their education.

Prof. Strossen speaking at Shorenstein Center

Prof. Strossen speaking at Shorenstein Center

Audience question: . . . Do you have a comment about these new phenomena of trigger warnings and microaggressions?

Strossen replies: You can guess what my position would be – clearly inconsistent with the First Amendment and academic freedom. . . 

So, on the free speech point, to give a trigger warning – even assuming it is only a warning and does not mean, therefore, you may not teach anything that somebody thinks is going to trigger some negative reaction – it’s like putting a scarlet letter on something.  So, even the label is somehow negative, conveying a negative judgment about whatever it is that’s being taught.

Beyond that, many students are saying you should not teach anything that is triggering with or without a label.  And my sense is that this movement, this demand has been so heavily critiqued, that I think it is on the wane.  I’m a little bit superstitious.  Actually, interestingly enough, it originated – you say it’s been around for relatively recently – it originated maybe 20 or so years ago, I believe, in the feminist blogosphere, specifically for sexual assault survivors who it was thought would feel comfortable talking and communicating in those confines.

[ht: Eugene Volokh]

Campus Free-Speech Watch

U. MO Campus conflict -- photographer being blocked by professor

U. MO campus conflict — photographer being blocked by professor who teaches mass media (source: NYT

 “Missouri professor who blocked media at protest apologizes,” CNNMoney, November 11, 2015

  1. Nick Anderson & Susan Svrluga, “Can colleges protect free speech while also curbing voices of hate?,” Washington Post, November 10, 2015
  2. Jelani Cobb, “Race and the Free-Speech Diversion,” The New Yorker, November 10, 2015
  3. Eugene Volokh, “Missouri U. Police: Call us about ‘harmful’ or ‘hurtful speech’,” The Volokh Conspiracy, November 10, 2015
  4. Joel Pollak, “The Ferguson Effect and the Self-Destruction of the Academy,” Breitbart News, November 10, 2015
  5. Eric Zorn, “Missouri protest takes a troubling turn,” Chicago Tribune, November 10, 2015
  6. Jonathan H. Adler, “Yale students protest forum on free speech,” The Volokh Conspiracy, November 10, 2015
  7. Eugene Volokh, “The anti-free-speech movement at the University of Missouri,” The Volokh Conspiracy, November 10, 2015 (video here)
  8. Cathy Young, “Trigger or treat: Campus censorship,” Newsday, November 9, 2015
  9. Conor Friedersdorf, “The New Intolerance of Student Activism,” The Atlantic, November 9, 2015 (“A fight over Halloween costumes at Yale has devolved into an effort to censor dissenting views.”)
  10. Daniel W. Drezner, “A clash between administrators and students at Yale went viral. Why that is unfortunate for all concerned,” Washington Post, November 2015
  11. Robby Soave, “Watch Students Tell Yale to Fire a Staffer Who Upset Their Safe Space,” Reason.com, November 6, 2015

Citron’s Hate Crimes in Cyberspace: Last Round of Commentaries

The Boston University Law Review Annex has now published the final rounds of commentaries on Professor Danielle Citron’s book Hate Crimes in Cyberspace

  1. Ryan Calo, For Whom the Bell Trolls
  2. Mary Anne Franks, Censoring Women
  3. William McGeveran, Online Harassment and Intermediary Immunity
  4. Ann Bartow, Online Harassment, Profit Seeking, and Section 230
  5. Kate Klonick, A New Taxonomy for Online Harms
  6. Woodrow Hartzog & Evan Selinger, Increasing the Transaction Costs of Harassment
  7. Catherine J. Ross, Why is it so Hard to Rein in Sexually Violent Speech?
  8. Jane R. Bambauer & Derek E. Bambauer, Cyber-Exploitation and Distributive Enforcement
  9. Neil M. Richards, The Internet Grows Up?

Forthcoming Books

  1. Eileen Horne, Zola and the Victorians: Censorship in the Age of Hypocrisy (Quercus Publishing, July 26, 2016)
  2. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 14, 2016)
  3. Corey Brettschneider, When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality (Princeton University Press, May 31, 2016)
  4. Kimberley Strassel, The Intimidation Game: How the Left Is Silencing Free Speech (Twelve, April 19, 2016)
  5.  Eric Heinze, Hate Speech and Democratic Citizenship (Oxford University Press, April 4, 2016)
  6. Edward Tortarolo, The Invention of Free Press: Writers and Censorship in Eighteenth Century Europe Springer, January 31, 2016)

New & Forthcoming Scholarly Articles

  1. Supreme Court Amicus Brief of 19 Corporate Law Professors, Friedrichs v. California Teachers Association,” SSRN 
  2. Heather Whitney, “Friedrichs: An Unexpected Tool for Labor,” NYU Journal of Law & Liberty (2015, forthcoming)
  3. Margaret H. Zhang, “Susan B. Anthony List v. Driehaus and The (Bleak) Future Of Statutes That Ban False Statements In Political Campaigns,University of Pennsylvania Law Review (2015)
  4. Scott Bauries, “Benign Prior Restraint Rule for Public School Classroom Speech,” Education Law & Policy Review (2015)
  5. Sonja West, “Student Press Exceptionalism,” Education Law & Policy Review (2015)
  6. Jennifer E. Rothman, “Commercial Speech, Commercial Use, and the Intellectual Property Quagmire,”  Virginia Law Review (2015)
  7. Michael Kagan, “Do Immigrants Have Freedom of Speech?,” California Law Review Circuit  (2015)

News, Op-eds & Blog Posts

  1. Publisher sues Arizona state prisons over alleged censorship,” Associated Press, November 10, 2015
  2. David Post, “First Amendment woes in North Carolina,” The Volokh Conspiracy, November 10, 2015
  3. Carter Dougherty, “First Amendment Case on Bank Card Fees May Land in Supreme Court,” Inside Sources, November 9, 2015
  4. Rutherford Institute Arguing First Amendment Right Protection for Redskins Name,” NBC29, November 6, 2015
Justice Oliver Wendell Holmes

Justice Oliver Wendell Holmes

It was 96 Years Ago Today — Holmes, J., dissenting in Abrams v. United States 

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

Forthcoming: The Inside Scoop on Justice Powell’s Central Hudson Opinion 

In a forthcoming post I will discuss Justice Lewis Powell’s opinion in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980) and how the test in that case came about. It is a fascinating story. Stay tuned.

The Court’s 2015-2016 First Amendment Docket

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here)

** Shapiro v. McManus  (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”)

Review Denied

  1. Center for Competitive Politics v. Harris
  2. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Sun-Times Media, LLC v. Dahlstrom
  2. Electronic Arts, Inc. v. Davis
  3. Miller v. Federal Election Commission 
  4. Rubin v. Padilla
  5. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority
  6. Yamada v. Snipes

Freedom of Information Case

The Court’s next Conference is scheduled for November 13, 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, #84: “Paul Smith Files Cert. Petition in Right of Publicity Case

Next Scheduled FAN, #85: Wednesday, November 18, 2015

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