FAN 90 (First Amendment News) Law Professors Urge Justices to Honor Stare Decisis in Union 1-A case

Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. — John Roberts (Sept.13, 2005)

Andrew Pincus

Andrew Pincus

“A review of this Court’s decisions over the last 75 years—from 1940 through 2015— reveals that the Court has expressly overruled only ninety-one constitutional precedents, or slightly more than one case per Term. And when the Court does overrule a precedent, it typically—in 57 percent of the cases—acts unanimously or nearly-unanimously, with two or fewer Justices in dissent. In only twenty-one cases (23 percent) did a bare majority of the Court overrule a constitutional precedent.”

Thus did Andrew Pincus argue in an amicus brief he filed in Friedrichs v. California Teachers Association, et al.The brief was submitted on behalf of  four constitutional scholars in support of the Respondents. The professors are:

  1. Walter E. Dellinger III, Douglas B. Maggs Professor Emeritus of Law, Duke Law School
  2. Michael H. Gottesman, Professor of Law, Georgetown University Law Center
  3. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law, and
  4. David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School.
Professor David Strauss

Professor David Strauss

In urging the Court not to overrule the unanimous judgment in Abood v. Detroit Board of Education (1977), Mr. Pincus and the law professors offer five reasons to support the Court’s invocation of stare decisis: 

  1. First, “overruling Abood will significantly disrupt settled legal rules in related areas. . . .Because the legal principle underlying Pickering and Abood is essentially identical, overruling Abood would undermine the more relaxed First Amendment standards governing government regulation of employee speech applied in Pickering and its progeny. . . . Overruling Abood . . . would lead inevitably to significantly greater limitations on government regulation of employee speech in the workplace.”
  2. “Second, Abood is a forty year-old precedent decided unanimously and reaffirmed multiple times by a unanimous Court. It has been applied consistently in the government employee context and relied upon by the Court to resolve First Amendment questions in related contexts involving government restrictions on associational interests.”
  3. “Third, Abood has created significant reliance interests. Twenty-three States and the District of Columbia have enacted statutes in reliance on this Court’s decision—and not just those statutes, but these States’ entire collective bargaining regime, would have to be revised if Abood were overruled.”
  4. “Fourth, no changes in relevant facts or in society or in legal principles support overruling Abood. The decision’s basic premise—that the government’s vital interest in structuring its workforce permits gov- ernment as an employer to take actions that would be unconstitutional in other contexts—has been con- sistently reaffirmed by this Court in a variety of contexts,” and
  5. “Fifth, the Abood standard is workable, as the de cisions of this Court and the lower courts make clear.”

Additionally, they argue that

overruling Abood would likely trigger an avalanche of lawsuits against government employers and unions seeking agency fee refunds. That has already happened in the wake of this Court’s decision in Harris: plaintiffs have filed class actions in a number of states, including New York, Oregon, and Washington. One suit seeks the return of over $20 million in agency-shop fees paid by childcare workers.

Will such arguments stay the reversing hand of the same Roberts Court that set aside stare decisis in cases such as Citizens United v. FEC (2010), McDonald v. Chicago (2010), Gonzales v. Carhart (2007), and Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007)? In all of those cases, among others, existing precedents were overruled by a bare majority of the Court.

→ Even if the Court should decline to formally overrule Abood, might it not do so functionally, by way of “stealth overruling“? After all, that tactic has been to such good use in the Miranda line of cases that even Chief Justice William Rehnquist (a longtime Miranda critic) declined to overrule the landmark Warren Court precedent when he had the chance to do so.

 The other Counsel for the Amici are: Eugene Fidell (Yale Law School Supreme Court Clinic), Charles Rothfeld, Michael Kimberly, and Paul Hughes (all of Mayer Brown).

→ See also FAN 28 (First Amendment News) — “The Demise of Stare Decisis?” (Aug. 20, 2014)

[ht: Tony Mauro]

Court Strikes Down Trademark Law on First Amendment Grounds

Yesterday, the Court of Appeals for the Federal Circuit struck down a provision of the Lanham Act that deals with disparaging or offensive trademarks. The 9-3 ruling was handed down in the case of In re Simon Shiao Tam in a majority opinion by Judge Kimberly A. Moore. Judges Jimmie V. Reyna and Alan David Lourie each wrote dissents. Judge Timothy Dyk concurred in part and dissented in part.

The Slants Band

The Slants Band

The case involved a dance-rock band known as “The Slants.” The band’s name was selected intentionally by its “front-man” Simon Shiao Tam who is an Asian-American. As noted in the Court’s opinion, “Mr. Tam named his band The Slants to ‘reclaim’ and ‘take ownership’ of Asian stereotypes. The trademark controversy arose when the band sought to trademark its name, which some view as disparaging to Asian-Americans. The Lanham Act bars the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks. (15 U.S.C. § 1052(a)).

 At the outset of her 62-page majority opinion, Judge Moore declared: “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.” In footnote 1 of the opinion, Judge Moore stressed:

We limit our holding in this case to the constitutionality of the § 2(a) disparagement provision. Recognizing, however, that other portions of § 2 may likewise constitute government regulation of expression based on message, such as the exclusions of immoral or scandalous marks, we leave to future panels the consideration of the § 2 provisions other than the disparagement provision at issue here. To be clear, we overrule In re McGinley, 660 F.2d 481 (C.C.P.A. 1981), and other precedent insofar as they could be argued to prevent a future panel from considering the constitutionality of other portions of § 2 in light of the present decision.

Here is an excerpt from Judge Moore’s majority opinion:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional.

Judge Moore stressed that “[w]hatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others.”

As to the government speech argument, Judge Moore noted that the

government’s argument in this case that trade-mark registration amounts to government speech is at odds with the Supreme Court’s analysis in Walker and unmoored from the very concept of government speech. When the government registers a trademark, the only message it conveys is that a mark is registered. The vast array of private trademarks are not created by the government, owned or monopolized by the government, sized and formatted by the government, immediately understood as performing any government function (like unique, visible vehicle identification), aligned with the government, or (putting aside any specific government- secured trademarks) used as a platform for government speech. There is simply no meaningful basis for finding that consumers associate registered private trademarks with the government.

Ronald D. Coleman argued the case for the for Appellant.

For commentary and a helpful outline of the case, see See Eugene Volokh, “Federal appeals court decides ‘The Slants’ case: excluding ‘disparaging marks’ from trademark registration violates the First Amendment,” The Volokh Conspiracy, Dec. 22, 2015 ((“the Supreme Court will likely agree to consider the case (if the government asks it to); so this isn’t the final word on the matter.”)

The Federal Circuit Court ruling was handed down while a similar case (Pro-Football Inc. v. Blackhorse) is pending in the Fourth Circuit. See FAN 82, “Smolla & Abrams to file First Amendment brief in Redskins trademark case,” Oct. 28, 2015.

Geoffrey Stone on ISIS & Free Speech

Professor Geoffrey Stone

Professor Geoffrey Stone

Writing in the Huffington Post, Professor Geoffrey Stone begins his essay this way: “In recent weeks, two of the legal scholars I most admire — Cass Sunstein (see here also) and Eric Posner — have independently called for possible limitations on the scope of First Amendment protection in light of the dangers posed to the United States by online radicalization messages directed at Americans. . . .” Here are a few additional excerpts:

“At the core of these concerns is the fear that if ISIS supporters are free to encourage others to join their ranks and to launch terrorist attacks against the United States, we will be less safe than if we could make it a crime for individuals to promote such messages. This is a credible fear. But a credible fear is not a sufficient justification for jettisoning hard-bought constitutional rights. . . .”

“Given our grim history in periods of perceived or real crisis, and given how long it has taken us to attain the wisdom and insight we have gained through painful national experience, this is definitely not the time to turn back the clock and to revert to long discredited doctrines that served us so poorly in the past. The temptation is certainly understandable, but the better part of wisdom is not to toss away our hard-bought freedoms in the absence of truly compelling necessity. . . .”

“The long and short of it is this: In the free speech arena, we have struggled for more than two hundred years to get to the right place. We should not throw that wisdom away in a panic. If we do, we will once again deeply – and rightly – regret our actions.”

51HDgTjR2GL._SX331_BO1,204,203,200_Forthcoming Books

  1. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 14, 2016)
  2. Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)
  3. Terri Diane Halperin, The Alien and Sedition Acts of 1798: Testing the Constitution (Johns Hopkins University Press, May 19, 2016)

Forthcoming Scholarly Articles

  1. Timothy Zick, “The Dynamic Relationship Between Freedom of Expression and Equality,” SSRN (Dec. 18, 2015)
  2. Nick Cohen, “Millian Liberalism and Extreme Pornography,” American Journal of Political Science (2015 forthcoming).

Notable Blog Posts

  1. David Post, “Protecting the First Amendment in the Internet Age,” The Volokh Conspiracy, Dec. 21, 2015
  2. Tabatha Abu El-Haj, “By Undermining Unions, The Roberts Court Will Do Still More Damage to Our Democracy,” Balkinization, Dec. 15, 2015

News, Editorials, Op-eds & Blog Posts

  1. Jason Noble, “Ted Cruz overstates effect of proposed constitutional amendment,” Politifact, Dec. 22, 2015
  2. OA protests: The First Amendment and public space vs. private,” MPR News, Dec. 22, 2015
  3. Editorial, “Snitch’s rights trumped by First Amendment,” Sun Sentinel, Dec. 22, 2015
  4. Adam Liptak, “Hip-Hop Stars Support Mississippi Rapper in First Amendment Case,” New York Times, Dec. 20, 2015
  5. Carly Hoilman, “Hip-Hop Artists Unite to Support Mississippi Rapper in First Amendment Case,The Blaze, Dec. 21, 2015
  6. Sadness, shame and blame at Yale over First Amendment repeal video,” FoxNews, Dec. 18, 2015 (see here for commentary by young college student, especially last part of video)
  7. Lachlan Markay, “Free Speech Groups Hail First Amendment Wins in Congressional Deal,” The Washington Free Beacon, Dec. 16, 2015

It Was 13 Years Ago Today: Lenny Bruce Posthumously Pardoned

Lenny Bruce

Lenny Bruce

“New York Governor George Pataki, on this day, granted comedian Lenny Bruce a posthumous pardon for his obscenity conviction on November 4, 1964, in New York City. Bruce’s iconoclastic style of humor involved searing attacks on American hypocrisy about sex, race relations, and religion. He became the role model for many later stand-up comics whose humor had a political orientation.”

See link in Today in Civil Liberties History

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 (see also Adam Liptak story re amicus brief)
  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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1 Response

  1. Brett Bellmore says:

    What precedent was overturned by McDonald v Chicago? Or perhaps I should say, what precedent anybody would care to defend? Cruikshank, Presser, and Miller v. Texas? A bunch of post-reconstruction rulings that were part of gutting the 14th amendment, that’s all. Declaring that the 14th amendment didn’t incorporate the Bill of Rights against the states, is that a precedent you’re concerned to restore?