FAN 95 (First Amendment News) “Fifty Shades of Grey” too Blue for Idaho?

Coming tomorrow: FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test


new-scenes-from-fifty-shades-of-greyThe Associated Press reported that a “movie theater is suing the Idaho State Police for threatening to revoke the theater’s liquor license because it served alcohol while showing ‘Fifty Shades of Grey.'”

“Village Cinema in Meridian, just west of Boise, has a liquor license and lets people drink alcohol in a restaurant or while watching movies in a designated 21-and-older VIP area, The Idaho Statesman reported. But state law prohibits places that are licensed to serve alcohol from showing movies that depict sexual acts.”

“Idaho police say a waitress at the theater served beer and rum to two undercover detectives watching the risque ‘Fifty Shades’ in the VIP seating last February. . . .”

“Idaho State Police later told Meridian Cinemas that it served alcohol while showing “Fifty Shades” from Feb. 13 to 18 and on Feb. 26, and attempted to revoke the theater’s liquor license.”

Counsel for Plaintiff: Jeremy Chou

→ Plaintiff’s complaint here. Among other things, Plaintiff’s counsel relies on the following precedent:

The Court decided 44 Liquormart on May 13, 1996.  The incidents in question here occurred in 1997. Thus, at the time that the Officials warned the Center’s management that hosting LSO’s art exhibition might subject the Center to sanctions, it was clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment. Thus, LSO’s right was “clearly established.” — LSO, Ltd. v. Stroh (9th Cir., 2000)

Michael Deeds, “Idaho theater lawsuit should spank stupid alcohol law,” Idaho Stateman, Jan. 22, 2016

 Eugene Volokh, “Idaho trying to revoke theater’s liquor license for showing ‘Fifty Shades of Grey’,The Volokh Conspiracy, Jan. 26, 2016

Missouri State lawmakers consider mandatory First Amendment classes

This from ABC News: “JEFFERSON CITY, Mo. The House committee on higher education considered a bill in Jefferson City Tuesday morning that would boost First Amendment education for Missouri students.

If passed, the legislation would require all college students to take a freedom of speech course before receiving a diploma.

The bill’s sponsor, Rep. Dean Dohrman, says last year’s protests on the MU campus was the main influence for this proposed legislation. . . .” (see Associated Press story here)

See also: Erik Wemple, “Mizzou professor Melissa Click charged with third-degree assault in quad clash,” Washington Post, Jan. 25, 2016

→ Jim Suhr, “Mizzou Chancellor Says He’s Not Going To Rush To Fire Melissa Click,” Huffington Post, Jan. 26, 2016

Campus Free-Speech Watch

Eugene Volokh, “Iowa State violated First Amendment by denying pro-marijuana student group the right to use ISU logo (plus cannabis leaf) on its T-shirts,” The Volokh Conspiracy, Jan. 22, 2016. Here are a few excerpts:

Heather Rowley wearing controversial T-shirt (credit: Michael Rowley, Iowa State Daily)

Heather Rowley wearing controversial T-shirt (credit: Michael Rowley, Iowa State Daily: link below)

“In today’s decision in Gerlich v. Leath, a federal district court held that Iowa State violated the First Amendment. [UPDATE: See also the Des Moines Register story about the decision.] The court stressed that the First Amendment broadly protects university student speech, including by protecting it against viewpoint-discriminatory denial of benefits. . . . Iowa State argued that their licensing practices are a form of government speech, as to which the government may discriminate based on viewpoint (citing Walker v. Sons of Confederate Veterans, the Confederate battle flag license plate case); but the court disagreed. . . .”

“I think that political or artistic speakers have a First Amendment right to use others’ trademarks as part of their message, even if the trademark owner is a private entity, or a public entity that denies permission on a viewpoint-neutral basis. . . . I think the same should apply to political T-shirts, at least when reasonable people would recognize that the T-shirt conveys a political group’s message and not the trademark owner’s. . . .”

“Congratulations to the Foundation for Individual Rights in Education and to Robert Corn-Revere, Ronnie London and Lisa Zycherman of Davis Wright Tremaine LLP, who represented the students through FIRE’s Stand Up For Free Speech litigation project.”

Editorial, “Students win for free speech,” Iowa State Daily, Jan. 26, 2016

* * * *

  1. Patrick Fricke, “Group plans national free speech event to protest campus censorship,” Campus Freedom, Jan. 25, 2016
  2. Peter Fricke, “Duke grad student equates free speech to white supremacy,” Campus Reform, Jan. 25, 2016
  3. Thomas Oide, “Committee formed to evaluate free speech policy on campus,” The Maneater, Jan. 20, 2016
  4. Bennett Carpenter, “Free speech, Black lives and white fragility,” The (Duke) Chroncile, Jan. 19, 2016
  5. Robby Soave, “Was 2015 a Bad Year for Campus Free Speech? Let’s Ask the Experts,”, Dec. 28, 2015

New & Forthcoming Scholarly Articles

  1. David Barnhizer, “‘Something Wicked This Way Comes’: Political Correctness and the Reincarnation of Chairman Mao,” SSRN (Jan. 17, 2016)
  2. David Barnhizer, “Language Control, ‘Hyper-Sensitivity’ and the Death of True Liberalism,” SSRN (Jan. 15, 2016)
  3. Scott Bloomberg, “Evaluating the Constitutionality of California’s Proposal to Force Legislators to Wear Donors’ Logos,” SSRN (Jan. 24, 2016) (abstract only)

Notable Blog Posts

  1. Steven D. Schwinn, “No Damages for Enforcing State Residency Requirement for Petition Circulators,” Constitutional Law Prof Blog, Jan. 21, 2016

News, Op-eds, & Blog Posts

  1. Michael Dorf, “How Un-rule-y is the First Amendment?,” Verdict, Jan. 27, 2016
  2. Kathryn Watson, “California AG Threatens Non-Profit Donors’ First Amendment Rights,” The Daily Caller, Jan. 26, 2016
  3. Marc Torrence, “Indictments Over Planned Parenthood Videos Violate First Amendment, Group Says,” Waukee Patch, Jan. 26, 2016
  4. John Whitehead, “Free Speech is not for the faint of heart,” Belgrade News, Jan. 26, 2016
  5. Bob Collins, “MN court: No free speech right to disrupt a meeting, NewsCut, Jan. 25, 2016
  6. Annie Hunt, “Former Pocono Township supervisor claims 1st Amendment rights violated,” Penn Record, Jan. 24, 2016
  7. Kristen Hare, “First Amendment lessons from the protests at Mizzou,” Poynter, Jan. 22, 2016
  8. Sam Martino, “First Amendment contest honors longtime Cap Times reporter,” The Cap Times, Jan. 22, 2016
  9. Gilad Edelman, “Heffernan v. Paterson and an Absurd First Amendment,The New Yorker, Jan. 20, 2016 (“Heffernan did allege expression protected by the First Amendment. He lost because two federal courts actually ruled that picking up a political campaign sign doesn’t count as speech under the First Amendment unless you really mean it. By playing along with the fiction that Heffernan didn’t exercise a First Amendment right, the Supreme Court may miss an opportunity to make sure that cases like his really are rare.”)

YouTube Posts on Campaign Finance & the First Amendment 

Senator Mitch McConnell (1988)

Senator Mitch McConnell (1987)

 “When Mitch McConnell Was In Favor of Campaign Finance Reform” (1987) (posted: Jan. 20, 2016)

“Senator Packwood, from Oregon, and I have offered an aternative bill on campaign finance that would eliminate PAC contributions, both to candidtates, and we’ve said we’d be willing to extend that to parties as well. If there is any problem in the current system, it’s the perception of undue influence or special interest influence. I think it is only a perceptual problem, but if it is a perception of a problem, I think we should let that go. What we should not have is a limitation on participation of individuals.”

  1. Hillary Clinton takes on Citizens United,” CNN (posted: Jan. 21, 2016)
  2. Sixth Anniversary of the Citizens United Ruling,” Big Picture RT (posted: Jan. 22, 2016)
  3. Elizabeth Warren’s Speech Against Citizens United and Oligarch Control of Politics,” Bernie Sanders 2016 (posted: Jan. 21, 2016)

This Day in First Amendment History

California Creates Un-American Activities Committee (Jan. 27, 1941). This from Today in Civil Liberties History:

“The California legislature on this day authorized the Joint Fact-Finding Committee on Un-American Activities in Committee, with Senator Jack B. Tenney as Chair. The lower-house California Assembly withdrew from participation in 1947, but the committee continued as the Senate Fact-Finding Committee. It is often referred to as the Tenney Committee, and its activities were similar to those of the House Un-American Activities Committee (HUAC), investigating people and organizations for their alleged left-wing political associations and using the tactic of guilt-by-association. HUAC was established on May 26, 1938.

The California Tenney Committee labeled the ACLU a “Communist-front” organization in its 1943 and 1949 annual reports. The House Un-American Activities Committee (HUAC) never took this step. The 1943 Tenney Committee annual report, for example, state that “The American Civil Liberties Liberties Union may be definitely classified as a Communist-front or ‘transmission belt’ organization.” (In the Cold War,”Transmission belt” was a term for organizations alleged to be the vehicles for spreading Communist ideology, even if they were not themselves Communist.)”

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) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. Paterson, N.J. (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

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

Pending Petitions*

  1. Town of Mocksville v. Hunter
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

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 Friday, February 19, 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.

NEXT SCHEDULED FAN #96: Wednesday, February 3, 2016

LAST FAN: # 94.1: “Tenured LSU Prof. Sues — University Claims Her Profanity Constituted Sexual Harassment

LAST SCHEDULED FAN #94: “Brooklyn Law School to Host Symposium: “Free Speech Under Fire — The Future of the First Amendment

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