FAN 107 (First Amendment News) FTC’s Power to curb misleading ads remains intact

After a lengthy hearing (involving 14 expert witnesses and nearly 2000 exhibits), an administrative law judge (ALJ) concluded that petitioners had violated the FTC Act. . . . On de novo review, the Commission found that petitioners had violated the FTC Act by using misleading, unsubstantiated ads to market their products. . . . .[T]he FTC factual findings at issue in this case are entitled to judicial deference under the substantial-evidence standard. Government brief in POM Wonderful

This past Monday the Court denied cert in POM Wonderful, LLC v. FTCa commercial speech case. It was the 14th First Amendment free-speech case the Justices denied review in this Term (see below). The issue in the case was whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo.

The U.S. Court of Appeals for the D.C. circuit ruled in favor of the Federal Trade Commission in an opinion by Judge Sri Srinivasan joined in by Chief Judge Merrick Garland and Senior Circuit Judge Douglas H. Ginsburg.

→ Tom Goldstein — who successfully Sorrell v. IMS Health, Inc. (2011) — was the counsel of record on the cert petition filed on behalf of POM Wonderful. In his brief Mr. Goldtstein argued:

The Federal Trade Commission (FTC) deemed several of petitioners’ advertisements unprotected by the First Amendment and banned them on the theory that their truthful content nonetheless implied a false or misleading message to a “significant minority” of consumers. Petitioners challenged that ban under the First Amendment. The Court of Appeals upheld the ban in its entirety because—applying only generic principles of administrative law—it gave great deference to the FTC’s determination that all of the challenged ads implied the alleged false or misleading messages and for that reason received no First Amendment protection.

The Cato Institute filed an amicus brief supporting the Petitioner.  In it, Cato’s lawyers argued:

This case raises the issue of whether the U.S. Courts of Appeals should defer broadly to Federal Trade Commission (“FTC”) adjudicative factual and legal findings when the agency’s order restrains commercial speech. The Court has not addressed that issue in 50 years. See F.T.C. v. Colgate-Palmolive Co. (1965). Since 1965, the deference accorded the FTC’s factual and legal findings in every administrative deceptive advertising case has effec- tively transformed the agency into a court of last resort despite the fact that all FTC deceptive adver- tising decisions necessarily involve limitations on prospective commercial speech and, thus, raise First Amendment issues, and despite the fact that in administrative cases the FTC not only initiates prose- cutions but also serves as the ultimate judge, an inherent conflict of interest.

All of those claims fell to the wayside when the Court denied cert. in the case earlier this week. Instead, the Court let stand the position argued for by the government in its reply brief in POM: “the court of appeals’ holding that substantial-evidence review applies in this context is correct and does not conflict with any decision of this Court or of another circuit or a state court of last resort.”

That said, the FTC’s powers to regulate misleading ads remained intact and the Commercial Speech doctrine likewise remained as it is.

By bringing [this] case [up for review] POM [put] all of its cards on the table. But other food and supplement advertisers will have to live with the results.Bruce Silverglade (counsel for Olsson Frank Weeda Terman Matz)

Backpage.com Contests Senate Subcommittee Subpoena 

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The case is Senate Permanent Subcommittee on Investigations v. Ferrer (Misc. No. 1:16-mc-00621-RMC, Dist. Ct., District of Columbia, April 26, 2016). Here is how the Applicant’s complaint begins:

“The Subcommittee comes before this Court asking for an order requiring the publisher of ‘an online forum for classified ads’—an online intermediary for speech of third-party users—to produce documents in response to three paragraphs of a subpoena issued by the Subcommittee on October 1, 2015 (‘Subpoena’). The Subcommittee would have this Court believe that this is a simple, almost ministerial, request to invoke the authority of the Judicial Branch in furtherance of the ordinary law-writing duties of the federal legislature. The Subcommittee describes its enforcement application as a mere effort to obtain a carefully circumscribed cache of information specifically necessary to the proper performance of its legislative drafting functions. In reality, it is nothing of the kind.”

Counsel for Applicant 

“The three paragraphs of the Subpoena now presented to the Court for enforcement strike at the very heart of Backpage’s First Amendment rights as an online intermediary publisher. Far from narrow, the very first of the Subpoena’s paragraphs alone illustrates the breadth and constitutionally infirm nature of document demands: ‘Any documents concerning Backpage’s reviewing, blocking, deleting, editing, or modifying advertisements in Adult sections . . . including but not limited to policies, manuals, memoranda and guidelines.’ Subpoena to Carl Ferrer from Chairman and Ranking Member of the Subcommittee (Oct. 1, 2015) (hereinafter, ‘Oct. 1, 2015 Subpoena’), attached hereto as Ex. A. Compliance with this demand would require the collection, review, and production of a vast array of materials concerning Backpage’s editorial processes, including virtually all emails to or from employees who perform the content review function, over a six-year period. The Subcommittee’s characterization of this dragnet Subpoena as a narrowly-tailored effort to obtain information directly relevant to contemplated legislation bears little, if any, resemblance to the facts.”

Steven R. Ross

Steven R. Ross

“. . . . Although the Congress enjoys a broad ability to conduct inquiries in support of its legislative function, that power is—like all governmental authority—constrained by constitutional limits. The government cannot require the production of information that impairs the exercise of First Amendment rights, and Backpage spelled out the ways in which the Subcommittee’s demands had just such an effect. Nor may the Subcommittee use its power of inquiry in a governmental effort to attack, impugn, and ultimately eradicate an unpopular publisher of constitutionally-protected speech. But the Subcommittee’s work appears to be connected to a larger effort to close down Backpage through various types of pressure tactics.”

The Applicant makes the following legal challenges:

I.     The Subcommittee’s Efforts to Compel Documents from Backpage and Its CEO Violate the First Amendment

        A. Backpage Raised Valid First Amendment Objections

        B. The Subcommittee Lacks a Valid Legislative Purpose to Support Subpoena Enforcement

        C. The Subcommittee’s Investigation is Part of a Punitive Campaign Targeting Backpage

II.   The Subcommittee’s Application for Enforcement of the Subpoena Seeks Relief Not Provided by 28 U.S.C. § 1365 and Otherwise Denies Backpage Due Process of Law

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No Joke! White House Fence Jumper Claims 1-A Defense 

Mr. Caputo exercising his "First Amend. rights" (Credit: ABC News)

Mr. Caputo exercising his “First Amend. rights” (Credit: ABC News)

This from Michelle Williams at MassLive: “A Constitution State resident who leapt over the White House fence in November is challenging his arrest as free speech. Joseph Caputo, of Stamford, was arrested last Thanksgiving after he sought to give President Barack Obama a revised copy of the Constitution. He was arrested by members of the Secret Service on the White House lawn and charged with a misdemeanor count of unlawful entry onto restricted grounds.Caputo has declined the offer of a plea deal for the charge and claims his actions are protected by the First Amendment.”

“‘Mr. Caputo’s entry onto White House property was not motivated by violence and it was not something that involved carrying a weapon,’ Stephan Seeger, Caputo’s attorney told the Connecticut Law Tribune.”

If Mr. Caputo’s First Amendment defense fails, he faces one year in jail and a $250,000 fine.

Free Speech on Campus

Eugene Volokh, Share on FacebookShare on TwitterShare via EmailJustice Department: Any ‘verbal … conduct of a sexual nature’ that any listener finds ‘unwelcome’ = ‘sexual harassment’ that universities must prevent, Volokh Conspiracy, May 2, 2016

  1. Kathryn Blackhurst, Michael Bloomberg Blasts ‘Safe Spaces, Code Words and Trigger Warnings’ in Commencement Speech, The Blaze, April 30, 2016
  2. Catherine Sevcenko, University of Minnesota Moves Closer to Adopting Powerful Free Speech Statement, The Torch (FIRE), May 3, 2016
  3. Marieke Tuthill Beck-Coon, UNM Findings Letter: The Growing Micromanagement of Title IX ComplianceThe Torch (FIRE), May 3, 2016
  4. Bradford Washington, Title IX order on campus ‘harassment’ violates rights, free speech advocates say, Washington Times, May 1, 2016
  5. Ted Diadiun, The left should defeat bad ideas with better ideas, not with attempts at censorship, Clevland.com, May 3, 2016
  6. Nicholas Fisher, Clinton Olsasky, Krista Johnson & Lyle Muller, On campus, civility and First Amendment in conflict, Des Moines Register, May 2, 2016

Coming to Chicago — First Amendment Salon on the road again

The First Amendment Salon, in conjunction with the Floyd Abrams Institute, is going on the road again, this time to the City of Chicago.

This is the second salon of 2016; it will address the topic of “The Centrality of the First Amendment” in our constitutional and political order. The salon dialogue will feature Professor Geoffrey R. Stone and Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit.

The salon is set for May 16th and will take place at the University of Chicago Law School. I will be there to introduce the event.

Forthcoming Book

Prof. Samantha Barbas

Prof. Samantha Barbas

Abstract:  “In 1952, the Hill family was held hostage by escaped convicts in their suburban Pennsylvania hom. The family of seven was trapped for nineteen hours by three fugitives who treated them politely, took their clothes and car, and left them unharmed. The Hills quickly became the subject of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives. Until, a few years later, the Hills were once again unwillingly thrust into the spotlight by the media—with a best-selling novel loosely based on their ordeal, a play, a big-budget Hollywood adaptation starring Humphrey Bogart, and an article in Life magazine. Newsworthy is the story of their story, the media firestorm that ensued, and their legal fight to end unwanted, embarrassing, distorted public exposure that ended in personal tragedy. This story led to one of the most public, important Supreme Court rulings on privacy in American legal history—Time, Inc. v. Hill—a ruling that still dictates our approach to privacy and freedom of the press.”

Samantha Barbas is an associate professor at Buffalo Law School and specializes in First Amendment Law, American Legal History, Privacy Law, Mass Communications Law

Newsworthy draws on personal interviews, unexplored legal records, and archival material, including the papers and correspondence of Richard Nixon (who, prior to his presidency, was a Wall Street lawyer and argued the Hill family’s case before the Supreme Court), Leonard Garment, Joseph Hayes, Earl Warren, Hugo Black, William Douglas, and Abe Fortas. Samantha Barbas explores the legal, cultural, and political wars waged around this seminal privacy and First Amendment case. This is a story of how American law and culture struggled to define and reconcile the right of privacy and the rights of the press at a critical point in history—when the news media were at the peak of their authority and when cultural and political exigencies pushed free expression rights to the forefront of social debate. Newsworthyweaves together a fascinating account of the rise of big media in America and the public’s complex, ongoing love-hate affair with the press.”

New & Forthcoming Scholarly Articles

Erica Goldberg, Free Speech Consequentialism, Columbia Law Review (2016)

  1. Robert Yablon, Voting, Spending, and the Right to Participate, Northwestern University Law Review (forthcoming 2017)
  2. Jonathan Manes, Online Service Providers and Surveillance Law Transparency, Yale Law Forum (2016)
  3. Reid K. Weisbord, A Copyright Right of Publicity, Fordham Law Review (forthcoming 2016)
  4. Renee Newman Knake, Lawyer Speech in the Regulatory State, Fordham Law Review (2016)
  5. Margaret Anne Malloy, Bell v. Itawamba County School Board: Testing the Limits of First Amendment Protection of Off-Campus Student Speech, SSRN (April 6, 2016)
  6. Marc Jonathan Blitz, Free Speech, Occupational Speech, and Psychotherapy, Hofstra Law Review (forthcoming 2016)
  7. Caroline Mala Corbin, Speech or Conduct: The Free Speech Claims of Wedding Vendors, Emory Law Journal (2016)
  8. Alix Iris Cohen, Nonconsensual Pornography and the First Amendment: A Case for a New Unprotected Category of SpeechUniversity of Miami Law Review (2016)
  9. Kevin R. Huguelet, Death by a Thousand Cuts: How the Supreme Court Has Effectively Killed Campaign Finance Regulation by Its Limited Recognition of Compelling State Interests, University of Miami Law Review (2016)

New & Notable Blog Posts

  1. Dale Carpenter, The Volokh ConspiracyOpinionTop faculty committee at Minnesota moves speech recommendations, Volokh Conspiracy, May 3, 2016
  2.  Nicholas Quinn Rosenkranz, William F. Buckley Program at Yale hosts its second annual ‘Disinvitation Dinner’, Volokh Conspiracy, May 2, 2016
  3. Erica Goldberg, More Than a Feeling: Massachusetts Decision re: Boston Band Member’s Suicide-Motive Speculation Reveals the Confused State of Defamation Law, In a Crowded Theater, April 29, 2016

News, Editorials, Op-eds, & Blog Posts

  1. Gene Policinski, First Amendment: Let’s celebrate ‘our’ World Press Freedom Day, GazetteXtra, May 3, 2016
  2. Jazz Shaw, Supreme Court rules on strangest First Amendment case in recent history, Hot Air, April 30, 2016
  3. Stephen Schwinn, Base Campaign Contribution Limit Challenge Headed to Full D.C. Circuit, Constitutional Law Prof Blog, April 27, 2016

Video: Brooklyn Law School 1-A Conference

Free Speech Under Fire: The Future of the First Amendment – Panel 5: The Future of Free Speech (Speakers: William Araiza, Stephen Shapiro, Robert Corn-Revere, Burt Neuborne, & Nelson Tebbe)

ACLU's Stephen Shapiro

ACLU’s Stephen Shapiro

More from Brooklyn Law School Conference

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)

Pending Petitions*

  1. Dart v. Backpage.com
  2. Pro-Football v. Blackhorse 
  3. Scholz v. Delp

Review Denied

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

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 May 12, 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 POST, #108: Wednesday, May 11, 2016

LAST SCHEDULED FAN POST, #106: The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive

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