FAN 89 (First Amendment News) Corn-Revere Brings First Amendment Challenge Against “Stop Advertising Victims of Exploitation” Act

Fresh from his victory in Backpage.com v. Dart (7th Cir., Nov. 30, 2015), noted First Amendment lawyer Robert Corn-Revere recently filed a complaint in the U.S. District Court for the District of Columbia in the case of Backpage.com v. Lynch. The complaint for declaratory and injunctive relief alleges:

  1. “This is an action challenging the constitutionality of the “Stop Advertising Victims of Exploitation” Act (the “SAVE Act”), which amended 18 U.S.C. § 1591, and was enacted as part of Public Law 114-22 on May 29, 2015. The Act added the term “advertises” among the predicate acts for criminal sex trafficking in Section 1591, punishable by prison terms ranging from ten years to life.”
  2. “Statements of Congressional sponsors and others in support of the SAVE Act and prior bills that led to the Act emphasized their intent to target the classified advertising website Backpage.com. Members of Congress and others have assailed Backpage.com for many years, despite the website’s extensive efforts to prevent, screen and block improper ads from users. Three states enacted criminal statutes to censor adult ads on Backpage.com, but  federal courts struck down all three laws, holding that the laws would have chilled First Amendment protected speech, were unconstitutionally vague and overbroad, lacked sufficient scienter requirements, and could not withstand strict scrutiny.”
  3. “Provisions of the SAVE Act targeting websites and others that publish or disseminate speech are also unconstitutionally vague, overbroad and infringe First Amendment rights for similar reasons. . . .”
  4. “[I]f the SAVE Act were interpreted to permit criminal liability if a website receives an allegation that a post concerns sex trafficking, this would create a notice- and-takedown regime that would impermissibly chill speech. Contrary to statements of some of the SAVE Act’s Congressional supporters, criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking. Given the enormous volume of third-party content they receive and disseminate every day, websites cannot possibly review every post to guarantee nothing is unlawful. Although it is unclear what the SAVE Act means, if it imposes notice-based criminal liability, then the Act is also unconstitutional because it would permit a “heckler’s veto” contrary to Reno v. ACLU, 521 U.S. 844 (1997).”
  5. “On the whole, the SAVE Act fails to give websites, publishers and others a reasonable opportunity to know what conduct is prohibited and what is permitted. With all its vagaries, the Act could allow ad hoc and subjective interpretations by prosecutors with attendant dangers of arbitrary and discriminatory application. And, given the severe penalties under the Act—up to life imprisonment—the risks and likely speech-chilling effect of the law is also severe. As a result, the Court should declare the SAVE Act unconstitutional and enjoin its enforcement.”

Ronald London and Lisa B. Zycherman were also on the complaint as counsel for the Plaintiff.

Former Correction Officials & Law Professors Weigh in on 11th Circuit Prison News Case

Last week I noted that noted Supreme Court litigator Paul Clement had filed a brief in an Eleventh Circuit Prison News Case. Mr. Clement filed a brief on behalf of Prison Legal News, a project of the Human Rights Defense Center. The case is Prison Legal News v. Secretary, Department of Florida CorrectionsThe controversy in the case centers around this: The Florida Department of Corrections, alone among the fifty States, the federal Bureau of Prisons, and every county jail in the country, is violating Prison Legal News’ (PLN) First Amendment rights by impounding every issue of its magazine based on the publication’s advertisements.

 Seven former corrections officials, with over 250 collective years of experience managing jails and prisons and advising corrections officials, submitted an amicus brief in support of PLN. The brief was filed by Alexander Chinoy, Elliott Schulder, Michael Beder, and Jason Grimes.

Another amicus brief, filed by Jason Burnette and Andrew Bentz, was submitted to the Court in support of PLN on behalf of law professors. Those professors who signed onto the amicus brief were:

  1. HADAR AVIRAM: Professor, UC Hastings College of Law
  2. ERWIN CHEMERINSKY: Dean of the Law School, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, UC Irvine School of Law
  3. BRYAN FAIR: Thomas E. Skinner Professor of Law, University of Alabama School of Law
  4. MALCOLM FEELEY: Claire Sanders Clements Dean’s Professor of Law, UC Berkeley School of Law
  5. PATRICK GUDRIDGE: Professor of Law, University of Miami School of Law
  6. JENNIFER KINSLEY: Associate Professor of Law, Northern Kentucky University Salmon P. Chase College of Law
  7. ANDREW KOPPELMAN: John Paul Stevens Professor of Law, Northwestern University Pritzker School of Law
  8. ALAN MILLS: Adjunct Professor, Northwestern University Pritzker School of Law
  9. MICHAEL MUSHLIN: Professor of Law, Pace Law
  10. KERMIT REITER: Assistant Professor, UC, Irvine School of Law
  11. IRA ROBBINS: Barnard T. Welsh Scholar and Professor of Law and Justice, American University Washington College of Law
  12. LAURA ROVNER: Associate Professor of Law, University of Denver College of Law
  13. JONATHAN SIMON: Adrian A. Kragen Professor of Law, UC Berkeley School of Law
  14. RODNEY SMOLLA: Dean & Professor of Law, Widener University, Delaware School of Law
  15. NADINE STROSSEN: John Marshall Harlan II Professor of Law, New York Law School, and
  16. SONJA WEST: Associate Professor of Law, University of Georgia Law

* * * *

Related News ItemHoward B. Hoffman, Steven Goldblatt and Shon Hopwood have recently filed a brief to the Fourth Circuit on behalf of the Appellant in Lane v. Anderson. As set out in their brief, on “December 1, 2014, former Deputy Sheriff James Lane filed this employment civil rights action in the District of Maryland against Sheriff John Anderson, in his official and individual capacities, and the Mayor and City Council of Baltimore (MCCB). Lane alleges that Sheriff Anderson and MCCB violated his First Amendment free speech rights, actionable under 42 U.S.C. § 1983, and rights to free speech and due process under the Maryland Declaration of Rights. Lane alleged that Sheriff Anderson terminated him from the Baltimore City Sheriff’s Office (BCSO) because Lane gave two interviews to media outlets about police misconduct within BCSO.”

“This case presents several substantial claims of federal law related to Monell liability, Eleventh Amendment immunity, qualified immunity, and, most importantly, First Amendment protected speech.”

Alschuler & Tribe Attack 2010 DC Circuit Ruling in Speech.Now

Writing in Newsweek, Professors Albert W. Alschuler and Laurence H. Tribe argue that “two months after Citizens United v. FEC (2010)in a case called SpeechNowan appellate court in the District of Columbia held all federal limits on contributions to super PACs unconstitutional. [The unanimous opinion for the nine-member en banc court was authored by then Chief Judge David Sentelle.] The Supreme Court had said that independent expenditures don’t corrupt, and the D.C. court reasoned that, if a group’s expenditures don’t corrupt, the contributions that make these expenditures possible can’t corrupt either.”

Professor Albert Alschueler

Professor Albert Alschuler

“The sentence of the Citizens United opinion on which the D.C. court relied was what lawyers call dictum—a nonbinding aside. Much of the Supreme Court’s opinion suggests that this statement should not be taken literally. Moreover, the D.C. court did not explain how super PAC contributions could be distinguished from the campaign contributions whose limitation Buckley had upheld.”

“Despite the many flaws of the D.C. Circuit decision, the Obama Justice Department failed to seek Supreme Court review. Attorney General Eric Holder explained in a letter to Senator Harry Reid: ‘The court of appeals decision will affect only a small subset of federally regulated contributions.'”

“The Justice Department must now realize how badly it blew it. Almost half the funds spent during the current presidential race have come from just 158 families contributing a minimum of $250,000. The “small subset of federally regulated contributions” has become the monster that devoured election law. . . .”

Albert Alschuler & Laurence Tribe, “Who Blew the Lid Off Campaign Contributions?Newsweek, December 10, 2015

Headline: “Drugmaker Settles Free Speech Dispute as FDA Agrees on Label”

pacira-pharmaceuticals-squarelogo-1424097308962A recent news story in Bloomberg Business notes that “U.S. regulators have backed off an attempt to limit Pacira Pharmaceuticals Inc.’s promotion of its pain drug, striking an agreement that’s likely to fan the flames of debate over free speech and drug marketing. The company’s shares climbed as much as 20 percent.”

“After the drugmaker filed suit citing its constitutional rights to free speech, the Food and Drug Administration agreed to let Pacira broadly promote the medication Exparel, rather than limiting its sales team to talking only about its use after bunion and hemorrhoid surgeries. . . .”

Related: Jennifer L. Herbst , “Off-Label ‘Promotion’ May Not Be Merely Commercial Speech,” SSRN, Dec. 13, 2015

Missouri Bill That Would Revoke Scholarships Draws First Amendment Fire

According to a Washington University news report, two “Missouri legislators have proposed a bill that would require public universities and colleges to revoke scholarships held by student-athletes who refuse to play, or incite, support or participate in a strike.”

“The proposed law violates the First Amendment of the United States Constitution, says an expert on freedom of speech at Washington University in St. Louis.”

“‘This proposed law is a classic example of a government lashing out at political ideas it doesn’t like,” said Greg Magarian, JD, professor of law in the School of Law. “That is exactly the kind of government tyranny the First Amendment was written to prevent.’ . . . .”

Campus Free-Speech Watch

  1. Eugene Volokh, “Kutztown University lifting unconstitutional ban on Confederate flag,” The Volokh Conspiracy, Dec. 15, 2015
  2. Anne Ryman, “Paradise Valley Community College sued over free-speech zone,” AZ Central Republic, Dec. 14, 2015 (federal complaint here)
  3. Richard Oxley, “State Rep. believes Washington universities are restricting free speech,” MyNorthwest, Dec. 15, 2015
  4. John Hood, “Activists oppose free speech,” Gaston Gazette, Dec. 14, 2015
  5. Bruce Weinstein, “The High Cost of Free Speech on Campus,” Fortune, Dec. 13, 2015
  6. Wisconsin Regents Back Free Speech,” Associated Press, Dec. 12, 2015

One Year Later: Cato Event to Revisit Charlie Hebdo Controversy

Date & Time: January 7, 2016 — 12:00PM to 1:30PM

Featuring Robert Corn-Revere, Adjunct Scholar, Cato Institute, and Partner, Davis Wright Tremaine LLP; moderated by John Samples, Vice President and Publisher, Cato Institute.

“On the morning of January 7, 2015, Cherif and Said Kouachi, two brothers deeply offended by satirical drawings of the Muslim prophet Mohammad published in the French weekly newspaper Charlie Hebdo, exacted their own punishment for perceived blasphemy. They forced their way into a staff meeting in the newspaper’s offices and massacred 12 people. The phenomenon of killing or threatening to kill those who insult you or your way of life has come to be known as the assassin’s veto.

Where should the law come down on this? Should it defend free expression at all costs no matter how inflammatory or who is offended? Or should it permit the state’s coercive power to silence those who trade in insult or invective? This conflict poses a fundamental question: how much expression must a free society tolerate?

European nations have often restricted “extreme speech” while the United States has protected speech short of immediate incitement to violence. Yet Supreme Court Justice Stephen Breyer has urged his fellow jurists to learn from the laws of other nations. Should the United States sustain its broad protections for speech or find a better, more European balance between freedom and other values?”

 To watch or listen: If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #CatoEvents. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.

To attend: To register to attend this event, click here and then submit the form on the page that opens, or email events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by noon on Wednesday, January 6, 2016.

New & Notable Law Review Article: “Against Jawboning”

Derek E. Bambauer, “Against Jawboning,” Minnesota Law Review (2015)

Abstract: Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate online content. They do so increasingly through informal enforcement measures, such as threats, at the edge of or outside their authority—a practice this Article calls “jawboning.” The Article argues that jawboning is both pervasive and normatively problematic. It uses a set of case studies to illustrate the practice’s prevalence. Next, it explores why Internet intermediaries are structurally vulnerable to jawboning. It then offers a taxonomy of government pressures based on varying levels of compulsion and specifications of authority. To assess jawboning’s legitimacy, the Article employs two methodologies, one grounded in constitutional structure and norms, and the other driven by process-based governance theory. It finds the practice troubling on both accounts.

To remediate, this Article considers four interventions: implementing limits through law, imposing reputational consequences, encouraging transparency, and labeling jawboning as normatively illegitimate. In closing, it extends the jawboning analysis to other fundamental constraints on government action, including the Second Amendment. This Article concludes that the legitimacy of informal regulatory efforts should vary based on the extent to which deeper structural limits constrain the government’s regulatory power.

New & Forthcoming Scholarly Articles

  1. Saul Cornell, “‘To Assemble Together for Their Common Good’: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech,” Fordham Law Review (2015)
  2. Nicholas Almendares & Catherine Hafer, “Beyond Citizens United,” Fordham Law Review (forthcoming 2016)
  3. Chelsea Elizabeth Bellew, “Combating Corruption in the United States: Why a Grass Roots Approach Is the Only Solution,” SSRN (Dec. 4, 2015)

News & Blog Posts 

  1. Irwin Slomka, “NYC Tribunal Rejects Claim That First Amendment Requires Use of Audience Factor for Sourcing Receipts from Credit Ratings,” Lexology, December 14, 2015
  2. Steven Schwinn, “Nude Dancing Plaintiffs Concede Away Their Preliminary Injunction Case,Constitutional Law Prof Blog, December 10, 2015

YouTube: Stone & Majeed on Free Speech

  • Geoffrey Stone & Azhar Majeed Discuss “What is Free Speech?” (View on YouTube here)

It Was 50 Years Ago Today 

Mary Beth Tinker, 8th Grader, Suspended for Wearing Protest Arm Band to School

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (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.”) (See Rick Hasen’s commentary here)

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)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al.
  2. January 19, 2016:  Heffernan v. Paterson, N.J.

Review Denied

  1. Sun-Times Media, LLC v. Dahlstrom
  2. Rubin v. Padilla
  3. Hines v. Alldredge
  4. Yamada v. Snipes
  5. Center for Competitive Politics v. Harris
  6. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  2. Bell v. Itawamba County School Board 
  3. Electronic Arts, Inc. v. Davis
  4. Miller v. Federal Election Commission 
  5. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is scheduled for January 8, 2016.

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.

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