FAN 104 (First Amendment News) Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center

 “Being bruced” means being prosecuted or harassed for speaking freely, for expressing unpopular ideas, or for breaking taboos. To be “bruced” is to be silenced for exercising one’s First Amendment rights. The expression  derives from Lenny Bruce’s free-speech encounters with the law.

Lenny Bruce, the ribald comic and free-speech hero, returns to life this evening for an 8:30 performance at the National Constitution Center in Philadelphia. Mr. Bruce, who inspired a generation of uninhibited comics, was charged with speech crimes for his comedic performances in Los Angeles, San Francisco, Chicago, and New York. In 2003, New York Governor George Pataki posthumously pardoned Mr. Bruce for his 1964 obscenity conviction.

Lenny Bruce

Lenny Bruce (1925-1966)

This evening’s performance (Can We Take a Joke?) is being supported by FIRE to celebrate “Freedom Day.”

Can We Take a Joke? is a documentary about the threats that outrage culture poses to comedy and free speech, featuring interviews with comedians such as Adam Carolla, Gilbert GottfriedLisa Lampanelli, Heather McDonaldPenn Jillette, and more.

FIRE partnered with the DKT Liberty Project and director Ted Balaker of Korchula Productions to produce Can We Take a Joke? Due for release this fall, the documentary explores many topics and cases, including the case of student Chris Lee, whose satirical play Passion of the Musical was disrupted by a group of students who had been organized by Washington State University administrators. It will also include interviews with FIRE President and CEO Greg Lukianoff, long-time FIRE friend and Brookings Institution scholar Jonathan Rauch, and Stand Up For Speech Litigation Project attorney Robert Corn-Revere, who was lead counsel in the petition to posthumously pardon Lenny Bruce.

Many of us lament the fact that college and high school students today don’t seem to appreciate freedom of speech as much as they should. This suspicion, unfortunately, pans out in recent surveys of millennials and generation Y. But rather than blaming the students, we should understand that we as a society have not been doing a very good job of educating students about the importance of freedom of speech. I try to do this in my writing, and FIRE is always trying to reach new audiences, but we realized many years ago that perhaps the best way to reach the largest possible audience is to remind students that comedy is impossible without freedom of speech. As I’ve said many times, you can either have a right not to be offended or you have good comedy, but you can’t have both. Can We Take A Joke? isn’t for everybody, but I think it will really connect with people who never really thought much about freedom of speech and how much we rely on it in every facet of our lives. — Greg Lukianoff (executive producer)

→ See Reason TV: Nick Gillespie interviews Greg Lukianoff re documentary.

If you’re a college student, there’s still time for you to apply for free exclusive screening rights to show the documentary on your campus between April 13th and April 20th. The deadline is fast approaching, however, so make sure to apply ASAP.

→ Related: Ronald Collins & David Skover, The Trials of Lenny Bruce: The Fall & Rise of an American Icon (Kindle edition, 2012) (see here also)

Full disclosure: I am a consultant to FIRE and likewise appear in the Can We Take a Joke? documentary.

* * * *

Headline: Westboro Baptist Church counter-protesters who flew American flags found guilty of picketing church

Professor Eugene Volokh has a timely and informative blog post on this controversy: “God hates flags? Protesters fight prosecution for displaying American flag outside Westboro Baptist Church,” Volokh Conspiracy, April 12, 2016. Here is the intro to Professor Volokh’s post:

Protestors Nicholas Hines & Brook Barger (credit: Luke Ranker, Capital-Journal)

Protestors Nicholas Hines & Brook Barger (credit: Luke Ranker, Capital-Journal)

“The members of Journey 4 Justice don’t much care for the tactics of the Westboro Baptist Church (that’s the “God Hates Fags”/“Thank God for Dead Soldiers” group). They therefore sometimes counter-demonstrate at Westboro demonstrations and sometimes assemble on the sidewalk near the Westboro building in Topeka, holding American flags. To quote the brief that I’ll quote more below, “Journey 4 Justice members do not stand on Westboro property; do not yell, chant or display any written messages; do not obstruct access to Westboro’s property; and do not engage the members of Westboro in any way.” They just display flags outside the church.

“But because of this, four Journey 4 Justice members were convicted of violating a Topeka ordinance that bans (1) “standing or sitting or walking in a repeated manner past or around a house of worship, by one or more persons while carrying a banner, placard, or sign” (2) “within 50 feet of the property line on which a house of worship is situated” if any entrance to the house of worship is located on that side of the property, (3) from half an hour before an “announced religious event” to half an hour after it. Westboro had announced that it holds religious events every day from 7 a.m. to 10 p.m., so the ordinance bans all picketing within 50 feet of the front property line of the church every day from 6:30 a.m. to 10:30 p.m. (The ordinance was enacted in 1995 as an attempt to suppress Westboro’s own picketing outside churches and funerals.)

The Journey 4 Justice members were found guilty by the Topeka Municipal Court but are now appealing to the Topeka District Court, where they will get a new trial. Their lawyers, Michael Raupp and Michael Owens of Husch Blackwell LLP, have just filed a motion to dismiss the charges; I offered Messrs. Raupp and Owens some advice on this motion and will likely be involved in the appeal, if there is one. (Raupp and Owens are colleagues of Gene Summerlin, who helped me a great deal as local counsel in the Nebraska Supreme Court’s Drahota case.) You can read the brief supporting the motion . . .

Go here to read the rest of the Volokh post.

51+Gli+0SrL._SX329_BO1,204,203,200_Eight Forthcoming Books

  1. Stephen Smith, First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays (University of Arkansas Press, October 2016)
  2. Jerry Barnett, Porn Panic!: Sex and Censorship in the UK (Zero Books, August 26, 2016)
  3. Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, revised ed., May 3, 2016)
  4. Stephen Shiffrin, The First Amendment, Democracy, and Romance (Princeton Legacy Library, May 2016) (reissue of 1990 book)
  5. Kevin Nelson, The Official Heckler Handbook: The Ultimate Guide to Offending and Irritating the Enemy (Lyons Press, May 1, 2016)
  6. John & Christine Kellett, A Voters’ Rights Amendment: Beyond Citizens United (CreateSpace Independent Publishing Platform, April 2018)
  7. Joseph Thai, First Freedoms Vol. III: A Multimedia Textbook on the First Amendment (Amazon Digital Services, April 2016)
  8. Eric Heinze, Hate Speech and Democratic Citizenship (Oxford University Press, April 4, 2016)

New & Notable Blog Post

“When I talk to students about free speech issues, one of the major objections to America’s conception of free speech is that it favors the rich and powerful, thus perpetuating the status quo.  This is a fair and important objection.  In this post, I will address the reasons that I ultimately find this objection conceptually and empirically unsatisfying.  Each of these reasons deserves its own blog post, so I want to just begin this conversation by outlining my thoughts here. . . .”

Professor Kyle Langvardt

Professor Kyle Langvardt

Seven New & Forthcoming Scholarly Articles

 Kyle Langvardt, “The Doctrinal Toll of ‘Information as Speech,'” Loyola University Chicago Law Journal (2016)

  1. Maggie McKinley, “Lobbying and the Petition Clause,” Stanford Law Review (forthcoming 2016)
  2. Howard M. Wasserman, “Holmes & Brennan,” Alabama Law Review (forthcoming 2016)
  3. Jeremy Kesslet, “The Early Years of First Amendment Lochnerism,” Columbia Law Review (forthcoming 2016)
  4. Seana Shiffrin, “Bedrock” (Responding to Leslie Kendrick, “How Much Does Speech Matter?”), Harvard Law Review Forum (2016)
  5. Robert Post, “RFRA and First Amendment Freedom of Expression,” Yale Law Journal Forum (2016)
  6. Urja Mittal, “The ‘Supreme Board of Sign Review’: Reed and its Aftermath,” Yale Law Journal Forum (2016)

Abstract of Urja Mittal essay: First Amendment jurisprudence is fickle. Sometimes it is transformed in prominent, widely known cases, like Citizens United. At other times, it is quieter, lesser known cases that revolutionize the doctrine. One of last summer’s cases, Reed v. Town of Gilbert, falls squarely into the latter category. The Supreme Court’s redefinition of content discrimination in Reed has led to rapid changes in how courts across the country are evaluating First Amendment challenges. Many courts have read the ruling as requiring them to strike down various state and local laws. Other courts have attempted to sidestep the implications of Reed by applying different First Amendment doctrines to evaluate the challenges that come before them. This divergence in the approaches taken by courts in First Amendment cases illuminates the complexity that results when courts try to apply Reed’s expanded content discrimination doctrine to real-world cases.

News, Editorials, Op-eds & Blog Posts

Shaun McCutcheon, “Trump’s Seething Masses: Conservatives Are The Last Real Free Speech Advocates Standing,The Daily Caller, April 11, 2016 (Mr. McCutcheon was the petitioner in McCutcheon v. FEC)

  1. H. Sterling Burnett, “Prosecute climate deniers? No, First Amendment protects debate,”, April 12, 2016
  2. Kim Holmes, “Liberal AG’s Waging War Against First Amendment in Blatant Attempt to Bend Law,” CNS News, April 12, 2016
  3. Editorial, “Don’t abuse your First Amendment rights,” The Daily Illini, April 12, 2016
  4. Bryan Fischer, “2016 Could Be the Worst Year Ever for the First Amendment,” Charisma News, April 11, 2016
  5. Editorial, “Why the First Amendment is first,” Herald Mail Media, April 10, 2016
  6. Eugene Volokh, “New Jersey man ticketed for flying Donald Trump flag,” Volokh Conspiracy, April 9, 2016

Recent YouTube Posts: From Camp Speech Codes to Buckley to the Gawker Case & More

Charles Overby & Geof Stone

Charles Overby & Geof Stone

The desire for censorship is driven by sudents. That’s the part that is unprecedented. Colleges and universities have always had to struggle to maintain and preserve academic freedom. . . . Now what we are seeing is this political correctness . . . . the key differnce [from past censorship on campus] is that [today] this is being driven by students. — Geoffrey Stone 

  1. Charles Overyby & Geoffrey Stone, The Value of the First Amendment, University of Mississippi School of Journalism
  2. Catherine Ross, Lessons on CensorshipBookTV, April 8, 2016
  3. Corruption of Influence – Buckley v Valeo and the First Amendment
  4. Gawker, Hulk Hogan, and the First Amendment, On the Media with Bob Garfield interviewing  Heather Dietrick (general counsel for Gawker)
  5. Liberal Tyrants Imprisoning American Truth SeekersAlex Jones Channel, April 7, 2016
  6. David Hudson speaks on the First Amendment (see also herehere & here)
David Hudson

David Hudson

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. City of Paterson (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 of Cases Already Argued

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

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. POM Wonderful, LLC v. FTC
  6. Town of Mocksville v. Hunter
  7. Miller v. Federal Election Commission
  8. Sun-Times Media, LLC v. Dahlstrom
  9. Rubin v. Padilla
  10. Hines v. Alldredge
  11. Yamada v. Snipes
  12. Center for Competitive Politics v. Harris
  13. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson

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):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on April 15, 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.

LAST SCHEDULED FAN, #103: “Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

NEXT SCHEDULED FAN, #105, Wednesday, April 20, 2016

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