FAN 86 (First Amendment News) Court may rule on occupational-speech petition soon
The United States Supreme Court has said that “the constitutional right of free expression is powerful medicine.” Powerful and essential, and it needs to be administered to everyone, including physicians and those regulating their practice. — Laurence Tribe
Most occupational licensing laws – at least those involving professions that have traditionally been subject to significant regulation – should not trigger rigorous review under the First Amendment, even if these laws regulate on the basis of the content of the speaker. — Vikram Amar
The case is Hines v. Alldredge and the issue in the case is whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review. The case was considered by the Justices in their Conference yesterday.
→ Facts: Texas requires veterinarians to conduct a physical examination of an animal on its premises before they can practice veterinary medicine on that animal. That law gave rise to a First Amendment challenge owing to the fact that Ronald Hines, a retired Texas-licensed veterinarian, launched a website and posted articles about pet health and care. As the Fifth Circuit noted when the case was before a three-judge panel, “these general writings soon turned to more targeted guidance . . . . [whereupon Dr. Hines] began ‘to provide veterinary advice to specific pet owners about their pets.’ This advice was given via email and telephone calls, and Hines ‘never physically examine[d] the animals that are the subject of his advice,’ though he did review veterinary records provided by the animal owners. . . . Hines charged a flat fee of fifty-eight dollars for his veterinary advice, though he would waive this fee if a pet owner could not afford to pay. He did, however, refuse to give advice if he felt that a physical examination was required, and he did not prescribe medication.”
“In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law.” Thereafter, he was placed on one year probation, received a stayed suspension of his license, and had to pay a $500 fine. He was also required to retake the jurisprudence portion of the veterinary licensing exam.
Dr. Hines challenged the Texas law and sought declaratory and injunctive in federal court. He challenged the physical examination requirement as applied to him as a violation of his rights under the First Amendment Fourteenth Amendments (Due Process and Equal Protection).
→ Circuit Court ruling: In an opinion by Judge Patrick Higginbotham, the Fifth Circuit denied those challenges. In that regard, Judge Higginbotham declared: “Whether Hines’s First Amendment rights are even implicated by thisregulation is far from certain. In defining the permitting practice of veterinary medicine for which its license is required, Texas only imposes a narrow requirement upon the veterinarian. But surely, if this restriction on the veterinarian’s medical practice is within its scope, it is but incidental to the constraint, and denies the veterinarian no due First Amendment right.”
“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.” Thus, they argue:
- “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,” and
- “The government’s motive in regulating occupational speech does not remove that speech from the First Amendment.”
→ Amicus briefs have been submitted by:
- Cato Institute & the Mackinac Center for Public Policy
- Association of American Physicians and Surgeons
- International Society for Animal Rights, and Advancing the Interests of Animals
- Pacific Legal Foundation
→ Related Scholarly Works
- Room For Debate Forum: “When Doctors Have the Right to Speak,” New York Times, August 2014 (contributors: Robert Post, Laurence Tribe, Vikram Amar & Dana Berliner)
- Robert Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press, 2013)
- Paul Sherman, “Occupational Speech and the First Amendment,” Harvard Law Review Forum (2015)
→ Recent Blog Posts
- Mark Joseph Stern, “Does the First Amendment Protect Professionals?,” Slate, November 23, 2015
- Eugene Volokh, “Professional-client speech and the First Amendment,” The Volokh Conspiracy, November, 20, 2015
First Amendment Salon: Abrams & Post on Reed v. Gilbert
→ Here is the video of the last First Amendment Salon (the seventh), which was co-hosted with the Abrams Institute. The Salon involved a dialogue between Floyd Abrams and Robert Post and was moderated by Linda Greenhouse.
→ Earlier Salons
- “The Roberts Court & the Future of the First Amendment” — Professors Erwin Chemerinsky and Eugene Volokh with Kelli Sager moderating (video here)
- “Is the First Amendment Being Misused as a Deregulatory Tool?” — Professors Jack Balkin and Martin Redish with Floyd Abrams moderating. (video here)
- “What’s Wrong with the First Amendment?” — Professor Steven Shiffrin and Robert Corn-Revere with Ashly Messenger moderating
- The McCutcheon case, campaign financing law, and the First Amendment — Paul Smith and Erin Murphy with David Skover moderating
- “Hate Speech – From Parisian Cartoons to Cyberspace to Campus Speech Codes” — Christopher Wolf, Greg Lukianoff with Lucy Dalglish moderating.
- McCullen v. Coakley, Anti-Abortion Protests & the First Amendment — Floyd Abrams and Steven Shapiro. with Nadine Strossen moderating.
→ Forthcoming Salons: Look for some more noted First Amendment persona in 2016 along with some new faces.
→ Something New: Additionally, next year the Salon will issue an occasional press release highlighting a new scholarly article deemed to be of special interest to the practicing First Amendment bar. Each release will be prefaced by an introduction by one of the Salon’s board members followed by a summary of the new or forthcoming article. Stay tuned.
Landmark Publications’ Topical First Amendment E-Books
Landmark Publications has been releasing a series of e-casebooks devoted to select First Amendment topics, among others. The links in the e-books are to Circuit Court cases decided in a given year. The cases are organized by Circuit. For example:
- First Amendment Overbreadth Doctrine (2015) (listing & linking to Circuit Cases from 2004-2015)
- Campaign Finance Regulations (2015) (listing & linking to Circuit Cases from 2004-2015)
- Commercial Speech (2015) (listing & linking to Circuit Cases from 2004-2015)
- Garcetti–Pickering Balancing Test (2015) (listing & linking to Circuit Cases from 2010-2015)
- Freedom of Information Act (2014) (listing & linking to Circuit Cases from 2007-2014)
Books: First Amendment Holiday Presents
Below is a list of 2015 books on the First Amendment, some of which might make the perfect present for that special free-speech person in your life — tis the season!
- Catherine Ross, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights (Harvard University Press, 2015)
- Burt Neuborne, Madison’s Music: On Reading the First Amendment (The New Press, 2015)
- Paul Rosenzweig & Timothy J. McNulty, Whistleblowers, Leaks, and the Media: The First Amendment and National Security (American Bar Association, 2015)
- Charles Slack, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech (Atlantic Monthly Press, 2015)
- Mick Hume, Trigger Warning: Is the Fear of Being Offensive Killing Free Speech? (William Collins, 2015)
- Kirsten Powers, The Silencing: How the Left is Killing Free Speech (Regnery Publishing, 2015)
- Andrew McCarthy, Islam and Free Speech (Encounter Broadside, 2015)
- David Shipier, Freedom of Speech: Mightier Than the Sword (Knopf, 2015)
- Mary Katharine Ham & Guy Benson, End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (Crown Forum, 2015)
- Helen J. Knowles & Steven B. Lichtman, Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices ( Palgrave Macmillan, 2015)
- Tom Flanagan, Persona Non Grata: The Death of Free Speech in the Internet Age (Signal, 2015)
- Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press, 2015)
- Anthony Maniscalco, Public Spaces, Marketplaces, and the Constitution: Shopping Malls and the First Amendment (SUNY 2015)
- Bruce Johnson, Advertising and Commercial Speech: A First Amendment Guide (Practising Law Institute 2015)
- Peter Davis, From Androboros to the First Amendment: A History of America’s First Play (University Of Iowa Press, 2015)
- M. Alison Kibler, Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation, 1890-1930 (M. Alison Kibler, 2015)
- Sam Lebovic , Free Speech and Unfree News: The Paradox of Press Freedom in America (Harvard University Press, March 7, 2016)
New Scholarly Articles
Alan K. Chen & Justin Marceau, “High Value Lies, Ugly Truths, and the First Amendment, Vanderbilt Law Review (2015)
Jeffrey Omar Usman, “Defamation and the Government Employee: Redefining Who Constitutes a Public Official,” Loyola University Chicago Law Journal (2015)
News, Op-eds & Blogs
- Ilya Shapiro, “Courts Should Review Executive-Agency Interpretations of the First Amendment,” Cato at Liberty, November 24, 2015
- Andrew Kloster, “Vermont Lawsuit a Test Case for GMO-Labeling Laws and the First Amendment,” Heritage Foundation, November 24, 2015
- “Sorry Billy Mitchell, Cartoon Network Has A First Amendment Right To Parody You,” Techdirt, November 24, 2015
- Rem Rieder, “Campuses need First Amendment training,” USA Today, November 23, 2015
Podcast: Chemerinsky & Lukianoff on Campus Speech
This National Constitution Center podcast discusses recent controversies at Yale University and the University of Missouri involving the First Amendment, the 14th Amendment, free speech and hate speech. Joining National Constitution Center scholar in residence Michael Gerhardt to discuss these issues are two experts in constitutional law. Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine, School of Law. Greg Lukianoff is president and CEO of the Foundation for Individual Rights in Education.
The Court’s 2015-2016 First Amendment Docket
- Heffernan v. Paterson, N.J. (cert. petition, amicus brief) (see blog post here) (oral arguments: 1-19-16)
- Friedrichs v. California Teachers Association, et al. (all briefs here) (oral arguments: 1-11-16)
** 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.”)
- Center for Competitive Politics v. Harris
- Building Industry Association of Washington v. Utter (amicus brief)
- POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
- Hines v. Alldredge
- Bell v. Itawamba County School Board
- Sun-Times Media, LLC v. Dahlstrom
- Electronic Arts, Inc. v. Davis
- Miller v. Federal Election Commission
- Rubin v. Padilla
- American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority
- Yamada v. Snipes
Freedom of Information Case
- New Hampshire Right to Life v. Dep’t of Health and Human Services (cert. denied with Thomas & Scalia dissenting)
→ The Court’s next Conference is scheduled for December 4, 2015. This Monday the Court will issue its orders from the November 24th Conference.
* 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, #85: “Is phone sex violent?” — Posner challenges lawyer in online classified advertising case”
Next Scheduled FAN, #87: Wednesday, December 3, 2015