FAN 105 (First Amendment News) Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech

[T]he exhibition of moving pictures is a business, pure and simple, originated and conducted for profit … not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion. Justice Joseph McKenna (1915), for a unanimous Court

Are paintings protected by the First Amendment?

What about music?

And photography and films?

Of course!  But wait, what about the words (and they are words) of the First Amendment?

Congress shall make no law . . .  abridging the freedom of speech, or of the press.

Recall that at first the Court rejected the idea that expression beyond words (verbal or printed) was entitled to constitutional protection — see Mutual Film Corp. v. Industrial Commission of Ohio (1915). Thankfully, that case gave constitutional way to Joseph Burstyn, Inc. v. Wilson (1952) and its progeny. But did either the logic or theory of the law ever catch up with its application?

Enter Harvard Law Professor Mark  Tushnet, University of Denver Law Professor Alan K. Chen and Duke University Law Professor Joseph Blocher. They have a new book coming out next year; its title: Free Speech Beyond Words: The Surprising Reach of the First Amendment (NYU Press, February 14, 2017). Here is an abstract:

Jackson Pollock (The Art Institute of Chicago)

Jackson Pollock (The Art Institute of Chicago)

“The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning.”

“As a legal matter, the Court’s conclusion is clearly correct, but its premises are murky, and they raise difficult questions about the possibilities and limitations of law and expression. Nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense, and sometimes do not even involve the transmission of articulable ideas. How, then, can they be treated as ‘speech’ for constitutional purposes? What does the difficulty of that question suggest for First Amendment law and theory? And can law resolve such inquiries without relying on aesthetics, ethics, and philosophy?”

“Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.”

See also, Justin Marceau & Alan K. Chen, “Free Speech and Democracy in the Video Age,” Columbia Law Review (2016).

 Related Literature  

Also Forthcoming: Stone on Sex . . . & the Constitution

When it comes to sexual expression, “it has taken us almost two centuries to get back to where we were at the time of the Founding.”Geoffrey Stone 

It has been in the works for a long time. I’m referring to Professor Geoffrey Stone’s next book: Sexing the Constitution.

It is a monumental work and will be published by Liveright (W.W.W. Norton). The book’s editor  is Philip Marino. (Norton published Professor Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (2005)).

Here is some advance publicity on the book, due out in April of next year.

Profesor Geoffrey Stone

Profesor Geoffrey Stone

Sexing the Constitution illuminates how the clash between sex and religion has defined our nation’s historyRenowned constitutional scholar Geoffrey R. Stone traces the evolution of legal and moral codes that have attempted to legislate sexual behavior from the ancient world to America’s earliest days to today’s fractious political climate. Stone crafts a remarkable, often thrilling, narrative in which he shows how agitators, moralists, legislators, and, especially, the justices of the Supreme Court have navigated issues as explosive and divisive as abortion, homosexuality, pornography, and contraception.

Overturning a raft of contemporary shibboleths, Stone reveals that at the time the Constitution was adopted there were no laws against obscenity and no laws against abortion before the mid-point of pregnancy. A pageant of historical characters, including Voltaire, Thomas Jefferson, Anthony Comstock, Margaret Sanger, J. Edgar Hoover, Phyllis Schlafly, and Justice Anthony Kennedy, enliven this landmark work that dramatically reveals how our laws about sex, religion, and morality reflect the paradoxes and cultural schisms that have cleaved our nation from its founding.

* * * * 

I asked Professor Stone if he might add a few words about the free-speech portion of the book.  Here is what he was  shared with me on that front:

9780674905559-usSexing the Constitution explores the relationship between sex, religion, and law from ancient times to the present. From the free speech perspective, the focus is, of course, on sexual expression. Sexing the Constitution shows how in the Greek and Roman world there were no limits to the explicitness of sexual expression, and that for the most part this remained true in Western culture through the Middle Ages and the Renaissance, despite a wide range of sexually explicit material.”

“English law did not recognize the concept of obscenity until the eighteenth century, and even then it was rarely invoked. Although sexual material was widely available in the American colonies, there were no prosecutions for obscenity, and, indeed, no laws against obscenity in the United States until the evangelical fervor of the Second Great Awakening in the early nineteenth century.”

Samuel Roth

Samuel Roth

“After the Civil War, in an era of severe moralism marked by the actions of Anthony Comstock, laws against sexual expression proliferated for the first time. These laws were so strict that they forbade any discussion of sex in any form and banned even the discussion of contraception. This suppression eventually led to sharp battles over the propriety of such restrictions in the late nineteenth and early twentieth centuries. For the most part, though, these battles were over the question of statutory interpretation rather than constitutional law.”

“The Supreme Court, of course, got involved in 1957 in the Roth case when the Court for the first time suggested that the regulation of sexual expression might violate the First Amendment. As Sexing the Constitution shows, through a combination of constitutional doctrine and the effects of technology, it has taken us almost two centuries to get back to where we were at the time of the Founding.”

Recipients of the 2016 Jefferson Muzzle Awards

The Thomas Jefferson Center for the Protection of Free Expression has just issued its 2016 Muzzle awards. Those anti-free-speech awards went to “colleges and universities for stifling free expression.” Here is more:

“An epidemic of anti-speech activity swept across the campuses of American colleges and universities in 2015 and shows little sign of abating in 2016. Not long ago, these same institutions were at the vanguard of First Amendment issues; students demanded—then made powerful use of—expanded speech rights on campus, and administrators held academic freedom sacrosanct.”

And the top “winners” are:

  1. University of Oklahoma
  2. Intercultural Affairs Committee at Yale
  3. University of Missouri
  4. Louisiana State University

Go here for more “winners.”

New & Forthcoming Scholarly Articles

Richard Hasen, “After Scalia: The Future of United States Election Law,” America-ho (Biannual journal of Japanese American Society for Legal Studies) (forthcoming 2016)

  1. David Golumbia, “Code is Not Speech,” SSRN (April 16, 2016)
  2. Magey McKinley, “Lobbying and the Petition Clause,” Stanford Law Review forthcoming 2016)
  3. Brian Russ, “Lobbyists are People Too, and They Should Be Free to Contribute to California Legislative Races,” SSRN (April 12, 2016)
  4. Andy Wang, “Stealing Press Credentials: Law Enforcement Identity Misappropriation of the Press in the Cyber Era,” University of Miami National Security & Armed Conflict Law Review (2016)
  5. Philip DiSanto, “Blurred Lines of Identity Crimes: Intersection of the First Amendment & Federal Identity Fraud,” Columbia Law Review (2016)
  6. Ned Snow, “Content-Based Copyright Denial,” Indiana Law Journal (2015)

New & Notable Blog Post

“In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.

The rule provides:”During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.”

 Go here for more.

News, Editorials, Op-eds, & Blog Posts

Josh Kenworthy, “Utah declares pornography a ‘public health crisis.’ Will other states follow?,” Christian Science Monitor, April 19, 2016

  1. Palladio Saporito, “Judge rejects motion to dismiss star’s suit,” Abruzzo, April 20, 2016
  2. Aaron Mabin & Harve Jacobs, “Judge Weighing Options in Federal Tour Guide Lawsuit,” Fox 54, April 19, 2016
  3. Kate Sheppard & Shane Ferro, “Exxon Tries To Bury Climate Documents By Claiming First Amendment Rights,” Huffington Post, April 19, 2016
  4. Alex Connor, “National Gallup survey reveals climate on college campus regarding First Amendment freedoms,” Iowa State Daily, April 19, 2016
  5. James Lynch, “Lawmakers call for Iowa attorney general to quit ‘assault’ on First Amendment,” Globe Gazette, April 18, 2016
  6. “‘First Amendment Rights!’ Two Democracy Now! Journalists Arrested Filming Anti-Trump Rally in NYC,” Democracy Now, April 15, 2016
  7. Jeff Roberts, “Lawmakers OK restrictions on medical pot advertising despite First Amendment concerns,” The Colorado Independent, April 14, 2016
  8. Damien Schiff, “Government turns up the heat on the First Amendment,” The Hill, April 13, 2016
  9. Jessee Ventura, “#DemocracySpring arrests: No First Amendment rights?,” Ora, April 12, 2016
  10. Fred Lucas, “‘Outrageous Violation of the First Amendment’: State AGs Take the Next Step in Going After Climate Change Skeptics,” The Blade, April 8, 2016
  11. Pat Hamilton, “Political correctness and the First Amendment on college campuses,” CDN, April 7, 2016
  12. Shahid Buttar & Sophia Cope, “Court’s Decision on Recording Police Erodes First Amendment Rights and Transparency While Inviting Violence,” Electronic Frontier Foundation, April 6, 2016

Today in Free-Speech History

From Today in Civil Liberties History: “The great jazz singer Billie Holiday recorded Strange Fruit, a powerful anti-lynching song, on this day. Columbia Records, with whom Holiday was under contract, had refused to record the song because of its strong political message. As a result, it was recorded and released by Milt Gabler’s Commodore Records. The song became the one for which Billie Holiday is most often remembered.”

YouTube video of Holiday singing Strange Fruit. 

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 22, 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, #104: “Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center

NEXT SCHEDULED FAN, #106, Wednesday, April 27, 2016

 

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