FAN 96 (First Amendment News) Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

Upcoming: FAC 7 (First Amendment Conversations) — Richard Hasen discusses his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016) . . . and more.  Stay tuned.

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Plaintiffs have a continuing right of access under the First Amendment . . . to view the bison culling activiies that occur on public land, including Yellowstone National Park. — Complaint in Ketcham v. U.S. National Park Service (Jan. 26, 2016)

Last week Jamie M. Woolsey, Professor Alan. K. Chen, and Stefanie Wilson filed a complaint in a Wyoming federal district court on “behalf of journalist Christopher Ketcham and wild bison advocate Stephany Seay, who are seeking access to Yellowstone Park’s controversial bison trapping operations that lead to the slaughter of hundreds of bison. The lawsuit argues that the First Amendment guarantees citizens and journalists reasonable, non-disruptive access to the publicly funded national park.”

This is how their complaint seeking injunctive and declaratory relief begins:

I love this land and the buffalo and will not part with it . . .  These soldiers cut down my timber, they kill my buffalo and when I see that, my heart feels like bursting. —  Satanta-Kiowa Chief

According to an Animal Legal Defense Fund press release, “the National Park Service is scheduled to capture and facilitate the killing of up to 900 bison inside Yellowstone Park starting on February 15, 2016. During the capture and kill operation, the Park Service closes parts of the park to public access. ‘It’s ironic that to benefit Montana ranchers grazing their cattle—an invasive species—Yellowstone Park has agreed to facilitate the capture and killing of 900 American bison, an iconic, native species,’ said law professor and ALDF attorney Justin Marceau. . . .”

bison2“‘If the First Amendment right of access is to mean anything,’ Marceau went on to say, ‘it means that citizens and journalists should have reasonable, non-disruptive access to their publicly-funded national park to observe and memorialize one of the most controversial uses of national park land imaginable.'”

“‘Denying access to the park during this controversial publicly-funded wildlife slaughter campaign is very similar to the intent of Ag-Gag laws,’ said ALDF Executive Director Stephen Wells. ‘Such laws ‘gag’ would-be whistleblowers, journalists and activists by making it illegal to record and disseminate photos or footage taken in agricultural operations. ALDF has successfully proven Ag-Gag laws are unconstitutional under the First Amendment and we are confident we will do the same in this case.’ . . .”

The complaint alleges that “from the late 1990s until 2006, Defendants regularly allowed the public and the media to view the herding, trapping, sorting, and shipping of bison from the catwalks over the pens withint the [National Park].”

Jamie Woolsey, lead counsel for Plaintiffs

Jamie Woolsey, lead counsel for Plaintiffs

According to an Associated Press story, “Yellowstone spokeswoman Sandra Snell-Dobert said the restrictions are meant to protect park workers and the public. Moving and sorting bison can be dangerous, particularly within the narrow confines of the corrals, Snell-Dobert said. The lawsuit says such safety claims are exaggerated and that access to the corrals was routinely allowed until 2006, with no reports of anyone being injured.”

“‘It’s about public safety, but also about trying to reduce stress on the animal,’ Snell-Dobert said in a statement, adding that a large exclusion zone is necessary so that bison will feel comfortable enough to wander toward capture pens as they graze.”

→ Nature World News reports that the “driving force behind the large-scale bison cull is to reduce potential conflicts between the park and Montana landowners, as bison often travel outside of the park for food during the winter. Unfortunately, the arrival of bison instills fear in landowners that the bison will transmit a highly-infectious disease known as brucellosis to their cattle – even though there have been no such recorded instances to date.”

→ Hearing: February 3, 2016, District Court in Casper, Wyoming before Judge Scott Skavdahl. Professor Alan Chen will argue on behalf of the Plaintiffs in support of their motion for a preliminary injunction.

→ Related item: Steven Schwinn, “Park Service Inauguration Regs Don’t Violate Free Speech,” Constitutional Law Prof Blog, Jan. 28, 2016

NY Post Attacks Commission’s Ethics Rule

In an editorial titled “An ‘ethics’ assault on the First Amendment” the New York Post’s editorial board lashes ought against a rule proposed by the state Joint Commission on Public Ethics. That rule, the editors maintain, requires “anyone paid to talk to editorial boards about public issues to register in Albany as a lobbyist. ‘Any attempt by a consultant to induce a third-party — whether the public or the press — to deliver the client’s lobbying message to a public official would constitute lobbying,’ says the new JCOPE rule.”

“Specifically, a consultant ‘who contacts a media outlet in an attempt to get it to advance the client’s message in an editorial would also be delivering a message,’ even if indirectly. JCOPE boss Daniel Horwitz calls this ‘reasonable regulation of speech.’ . . . .”

“Albany isn’t the Kremlin. New Yorkers, paid or unpaid, have every right to discuss public issues with editorial boards or anyone else they choose. And it’s none of anyone’s damn business if they do. Freedom of speech is the heart of democracy — and it’s protected by the Constitution. That’s why even left-leaning civil-rights groups, like the New York Civil Liberties Union, are livid. . . .”

“‘Requiring someone to report every conversation with an editorial writer is intimidating to both journalists and advocates,’ says NYCLU head Donna Lieberman. . . .”

See also Bill Hammond, “JCOPE’s ‘media consultant’ mistake,” Politico New York, Feb. 1, 2016

Niehoff & Messenger on Milkovich v. Lorain Journal –– 25 Years Later 

The current issue of the University of Michigan Journal of Law Reform contains an article by two media law experts, Len Niehoff and Ashley Messenger. The article is titled “Milkovich v. Lorain Journal Twenty-Five Years Later:  The Slow, Quiet, and Troubled Demise of Liar Libel.” Here is an abstract of the article:

10/05/06 Studio portrait of Len Niehoff

Professor Len Niehoff

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to steer around the problematic Milkovich decision. And in Part IV we offer suggestions for the future direction of jurisprudence in this complicated area of the law.

The 1990 Malkovich case was decided by a 7-2 vote. Chief Justice William Rehnquist wrote the majority opinion and Justice William Brennan (joined by Justice Thurgood Marshall) wrote a dissent.

 FlashbackThe counsel in the case were:

  • Brent L. English argued the cause for petitioner. With him on the brief was John D. Brown.
  • Richard D. Panza argued the cause for respondents. With him on the brief were William G. Wickens, David L. Herzer, Richard A. Naegele, P. Cameron DeVore, and Marshall J. Nelson.
  • Briefs of amici curiae urging affirmance were filed for Dow Jones & Co. et al. by Robert D. Sack, Richard J. Tofel, Richard M. Schmidt, Jr., Devereux Chatillon, Douglas P. Jacobs, Barbara L. Wartelle, Harvey L. Lipton, Laura R. Handman, Slade R. Metcalf, Richard J. Ovelmen, Deborah R. Linfield, Jane E. Kirtley, and Bruce W. Sanford; and for the American Civil Liberties Union et al. by Henry R. Kaufman.
  • Louis A. Colombo and David L. Marburger filed a brief for the Ohio Newspaper Association et al. as amici curiae.

Colb & Dorf on Citizen Journalists & Planned Partenhood  Videos


Professor Sherry Colb

In an op-ed for CNN, Cornell Law Professors Sherry Colb and Michael Dorf write:

“Supporters of women’s reproductive health likely cheered the news. A grand jury in Harris County, Texas, investigating whether Planned Parenthood officials broke the law by selling fetal body parts not only cleared the officials of wrongdoing, but also, in a stunning act of legal jujitsu, indicted two pro-life activists who created the video that led to the grand jury investigation in the first place.”

“We are pro-choice, and we support the important work of Planned Parenthood, but we find the prosecution of these citizen journalists, however self-styled, deeply disturbing. . . . “

“Whatever the precise facts of this case prove to be, the prosecution has broader implications, and not just for abortion and anti-abortion speech. Undercover exposés play a vital role in informing the American public of important facts that would otherwise remain hidden.”

“For example, Upton Sinclair’s muckraking 1906 novel “The Jungle” was based on his incognito work in the Chicago meatpacking industry. Timothy Pachirat’s more recent “Every Twelve Seconds” shows the impact of a modern slaughterhouse on the workers and animals unlucky enough to find themselves in its confines. Unfortunately, the courts have not consistently protected undercover reporting.

Prof. Michael Dorf

Professor Michael Dorf

“Animal rights activists who gain access to farms, slaughterhouses and laboratories by disguising their true intent may face criminal charges. In a carefully reasoned opinion last August, a federal district judge invalidated Idaho’s “ag-gag” law on First Amendment grounds, but the state has appealed, and the ultimate outcome remains uncertain. . . . “

Bottom line: “we decry the national campaign of defamation that Daleiden and his political allies have unleashed against Planned Parenthood. But we also oppose efforts to criminalize undercover investigations, regardless of the investigators’ ultimate motives.”

Campus Free-Speech Watch

  1. Rudi Keller, “Bill seeks to restore First Amendment rights of student media,” Columbia Daily Tribune, Feb. 2, 2016
  2. Mallory Daily, “Cronkite New Voices Act would help ensure press rights for students in Missouri,” St. Louis Public Radio, Feb. 2, 2016
  3. Jack Suntrup, “New bill would bar censorship of student journalists; photographer in viral Mizzou video voices support,” Lake, Feb. 2, 2016
  4. Charlotte Allen, “Campus Free-Speech Organization Defends Georgetown Law Students Barred From Distributing Bernie Sanders Material on Campus,” Independent Women’s Forum, Feb. 2, 2016
  5. Brooke Rogers, “Desperately seeking a college that’s free of ‘safe spaces’,” New York Post, Feb. 1, 2016
  6. Sam Groves, “Prof. Weinberg’s gun ban preserves free speech,” The Daily Texan, Feb. 1, 2016
  7. Peter Fricke, “Group plans national free speech event to protest campus censorship,” Campus Reform, Jan. 25, 2016

Upcoming Event: “Campaign Finance & the 2016 Election”

Sponsor: ABA Section of Civil Rights & Social Justice

Date: Wednesday, February 17, 2016 5:30 p.m. to 7:00 p.m.


  •  Brad Deutsch, Counsel to Bernie 2016, Garvey Schubert Barer
  •  Donald F. McGahn, Counsel to Donald J. Trump for President, Inc., Jones Day
  •  Commissioner Lee E. Goodman, Federal Election Commission
  •  Commissioner Ellen L. Weintraub, Federal Election Commission


  •  Claire Rajan, Allen & Overy LLP; Co-Chair, ABA Section on Civil Rights& Social Justice First Amendment Rights Committee

 Location: Allen & Overy LLP th 1101 New York Avenue, NW, 11th floor, Washington DC, 20005

→ RSVP (here)

C-SPAN Coverage of Buckley v. Valeo Event

→  Event (1-26-16) sponsored by Cato Institute & Center for Competitive Politics (description here)

  1. First Panel: “Why the Buckley Decision Matters” — Matea Gold, Bradley Smith & Floyd Abrams (video link here)
  2. Second Panel: “The Impact of Buckley on Campaigns and Elections” — David Keating, Jay Goodlife & Jeffrey Milyo (video link here)
  3. Third Panel: “What is Living and What Is Dead in Buckley v. Valeo?” –David Savage, Jan Baran, & John Samples (video link here)

Forthcoming: Eye-Opening Book on Pornography

Shira Tarrant, The Pornography Industry: What Everyone Needs to Know (Oxford University Press, March 29, 2016)

51ojDQylhTL._SX332_BO1,204,203,200_Abstract: We may know pornography when we see it, but the business of pornography is a surprisingly elusive subject. Reliable figures about the industry are difficult to come by and widely disputed, but one matter that is hardly debatable is that pornography is a major and ubiquitous enterprise. Porn allegedly accounts for one-third of all internet traffic currently, though the data about actual consumption is unclear. Reports in recent years have suggested that 70 million individuals visit porn sites every week; that among viewers aged 18-24, women watch more porn than men; and that among middle-aged, white-collar workers, three-quarters of men and half of women have admitted to looking at pornography websites while at work.

While debates and emotions around porn can run high, there is a crucial need for reliable information and rational conversation. In this book, Shira Tarrant parses the wide range of statistics that we have on the pornography industry, sorting myth from reality in an objective, fascinating and knowledgeable fashion. She looks at ongoing political controversies around the industry, the feminist porn wars, the views of the religious right, the history of pornography, landmark legal cases, and the latest in medical research. The Pornography Industry also explains the industry basics  — who works in porn, why people become performers, how much they earn, and what happens on a porn set. It further delves into important questions such as: how many teenagers watch porn and should we worry about it? What is porn piracy and can it be stopped? What can the industry do about sexist and racist pornography? Does porn cause violence against women? Can people become addicted to porn? Is watching porn the same as infidelity? By presenting competing perspectives in an even-handed way, The Pornography Industry will enable readers to explore these provocative issues and make their own best decisions about the debates.

“Pornography is a controversial topic that many people like to argue about-and even more people like to watch. Shira Tarrant has written an even-handed account of the legal, political, and social issues at stake. This important book provides an accessible overview of key concerns that face parents, educators, the curious, and the concerned.” — Nadine Strossen

New & Forthcoming Scholarly Articles

  1. Leslie Kendrick, “How Much Does Speech Matter?,” Harvard Law Review (forthcoming 2016)
  2. Wesley J. Campbell, “Speech-Facilitating Conduct,” Stanford Law Review (2016)
  3. Alex B. Long, “The Lawyer as Public Figure for First Amendment Purposes,SSRN (Jan. 29, 2016)
  4. Tyler Broker, “First Amendment Speculation and Conjecture,” SSRN (Jan. 27, 2016)
  5. Helen Norton, “Government Speech and Political Courage,” Stanford Law Review (2015)
  6. James Marc Less, “The ‘Brave Little State of Vermont’ Can Overcome Citizens United all by Itself,” SSRN (2015)

Howard Zinn: “Second Thoughts on the First Amendment”

→ See YouTube posting here (recently posted)

See also other recently posted commentaries by Howard Zinn:

  1. The Espionage Act of 1917
  2. The Power of Protest
  3. What Does Freedom of Speech Mean?

News, Op-eds & Blog Posts

→ Timothy Zick, “The First Amendment and the World,” Washington Monthly, Jan. 23, 2016

  1. David Deming, “Islam and the First Amendment,” American Thinker, Jan. 31, 2016
  2. Anthony Fisher, “Marco Rubio Says ISIS is Too Scary For the First Amendment at GOP Debate,”, Jan. 28, 2016
  3. Erica Goldberg, “SCOTUS Sorely Needed to Resolve Clash Between Right of of Publicity & First Amendment,” In A Crowded Theater, Jan. 27, 2016

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 is in recess. It’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 #97: Wednesday, February 19, 2016

LAST SCHEDULED FAN #95: “’Fifty Shades of Grey’ too Blue for Idaho?

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