FAN 108 (First Amendment News) Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play

It is rare for the Senate to reject a Supreme Court nominee — the last time it did so was in 1987, when it voted against Robert H. Bork after an ugly political battle. . . . No president in at least the past century has had a Supreme Court nominee go unconfirmed on the grounds that it was an election year, according to ScotusblogEmmarie Huetteman

While the war of Citizens United and campaign financing rages on, Democrat and Republican groups are busy tapping into their financial war chests to contest key Senate races, which could determine the makeup of the Senate and the confirmation process as it applies to nominees to the Supreme Court . . . and that could shape the future of the First Amendment.

Writing in Politico, Burgess Evertt pointed out that “Democrats are getting badly outspent by their conservative rivals in the war over Merrick Garland’s confirmation, suggesting that President Barack Obama’s closest allies in the Supreme Court battle have more bark than bite.”

“The Constitutional Responsibility Project — which is taking the lead in the Democratic PR push over the court — has spent about $150,000 on two ads knocking Sens. Rob Portman of Ohio and Pat Toomey of Pennsylvania for stonewalling Garland’s nomination, according to two media tracking sources. That’s a pittance compared to the conservative Judicial Crisis Network, which has already spent $4.5 million to bolster vulnerable Republicans and attack moderate Democrats for urging action on Garland. . . .”

Everett also noted that “other groups aligned with the left are making seven-figure ad buys: End Citizens United hit GOP senators in New Hampshire, Iowa and Missouri with $1.2 million in ads, and Senate Majority PAC spent $1 million on Supreme Court ads targeting GOP Sen. Kelly Ayotte in New Hampshire. Planned Parenthood has spent $400,000 to animate voters on the Garland issue, and a number of smaller digital ad buys, led by Majority Forward, are hitting Republicans on the matter. . . .”

Meanwhile, back on the Hill, Chief Judge Merrick Garland is making the rounds (limited as they are) to any senator who will agree to see him (46 to date, 14 of them Republicans).

∇ ∇ ∇ 

Below is a list of the Court’s 5-4 First Amendment free expression rulings in which Justice Antonin Scalia was in the majority:

  1. Garcetti v. Ceballos (2006)
  2. E.C. v. Wisconsin Right to Life, Inc. (2007)
  3. Morse et al. v. Frederick (2007)
  4. Davis v. Federal Election Commission (2008)
  5. Citizens United v. Federal Election Commission (2010)
  6. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
  7. Harris v. Quinn (2014)
  8. McCutcheon v. Federal Election Commission (2014)

Bravin On Garland’s Nomination Questionnaire

Jess Bravin (credit: NYT)

Jess Bravin (credit: NYT)

Wall Street Journal Supreme Court correspondent Jess Bravin just posted a piece on the 141-page questionnaire Chief Judge Merrick Garland submitted to the Senate Judiciary Committee yesterday. The questionnaire, he wrote, “offers a sliver of Judge Garland’s views by asking him to describe his 10 most significant judicial opinions, as well as the 10 most significant matters he handled as a trial or appellate attorney. . . .  At the top of his list of significant opinions Judge Garland listed a 2015 opinion that expanded the definition of the press beyond conventional news organizations to account for new, Internet-fueled forms of media.”

“Another FOIA case,” Bravin added, “made Judge Garland’s list: his 2013 opinion requiring the Central Intelligence Agency to respond to a request related to drone strikes filed by the American Civil Liberties Union. The CIA had refused to acknowledge whether it held any such records; Judge Garland found such a position untenable, as the president had publicly acknowledged the drone program.”

FAN 101.2:  Judge Garland on the First Amendment: Opinions & Votes

New Study: First Amendment Offers Scant Protection for Professors

Writing in Physorg, Phil Ciciora focused on a “new study by a University of Illinois employment law expert determined that the First Amendment often fails to protect the most controversial ideas expressed by faculty in higher education.When academics choose to litigate speech disputes with colleges and universities, they end up losing nearly three-quarters of the time – a finding that points to the growing tension between academic freedom and campus speech codes, said Michael LeRoy, a professor of labor and employment relations at Illinois and author of the paper.The paper’s findings suggest that the First Amendment doesn’t adequately protect academic freedom as fully as faculty ‘understand the concept of constitutionally protected speech,’ LeRoy said. . . . “

The study was published in the Journal of College and University Law.

“The study, which analyzed 210 lawsuits involving First Amendment claims by professors and college instructors against public colleges and universities from 1964-2014, found that educational institutions won more than 73 percent of cases in federal and state courts. Faculty members lost most First Amendment cases involving publishing, classroom activities, protests, social commentary and campus criticism, according to the research.”

Cattle Group Has First Amendment Beef with USDA

BILLINGS, Mont. — “A cattle organization based here has filed a First Amendment lawsuit against USDA seeking to block beef checkoff fee collections on behalf of the Montana Beef Council, arguing members have been compelled to fund speech contrary to their best interests.”

“Bill Bullard, CEO of the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America, said the lawsuit, filed May 2 in U.S. District Court in Great Falls, Mont., is a test case, and similar lawsuits will follow in other state if it’s successful.R-CALF’s suit alleges that the council’s promotions have generically highlighted the benefits of beef, treating foreign beef as equivalent to U.S. beef, though many in the cattle industry would prefer to emphasize the superiority of domestic beef.”

John O’Connell, Cattle group’s suit says beef checkoff violates First Amendment, Capital Press, May 6, 2016

Campus Free-Speech Watch

  1. Wendy Kaminer, Eroding Student Freedom, One Authoritarian Policy At A Time, ABUR (Boston NPR), May 10, 2016
  2. Camille Paglia, Free Speech & the Modern Campus, The Smart Set, May 9, 2016
  3. Dave Huber, Towson U. implements ‘hate/bias’ reporting system to ensure ‘anti-racist campus climate’, The College Fix, May 9, 2016
  4. The debate over student off-campus speech and First Amendment protection, Constitution Daily, May 9, 2016
  5. Adam Steinbaugh, Harvard’s Double Standard on the Role of Student Organizations, The Torch, May 9, 2016
  6. Bob Unruh, College censors gun sign, student wins $50,000, WND, May 8, 2016
  7. Samantha Harris, Speech Code of the Month: University of Missouri, The Torch, May 6, 2016

Next First Amendment Salon: Stone & Posner

This coming Monday the First Amendment Salon goes back on the road again, this time to the University of Chicago Law School. The topic of “The Centrality of the First Amendment” will be explored in a dialogue between University of Chicago Law Professor Geoffrey Stone and Judge Richard Posner of the Seventh Circuit Court of Appeals.

Harvey Silverglate

Harvey Silverglate

Harvey Silverglate Wins Manhattan Institute’s Alexander Hamilton Award

Alex Morey: “FIRE co-founder Harvey Silverglate received the Manhattan Institute’s 2016 Alexander Hamilton Award last night at a gala dinner in New York City for his decades of civil liberties advocacy.”

“An attorneyauthor, and activist, Harvey co-founded FIRE with University of Pennsylvania professor Alan Charles Kors in 1999. Harvey continues his legal advocacy work with the Boston firm Zalkind Duncan & Bernstein LLP, specializing in criminal defense, civil liberties, and student-rights cases. He currently serves on FIRE’s Board of Directors and writes extensively on civil liberties issues. . . .”

Coming: “The First Amendment Society”

When Raging Bitch beer was released in 2009, the Michigan Liquor Control Commission promptly banned it from being sold in the state, deeming the beer “detrimental to the health, safety and welfare of the general public.” 

imagesThough it began with beer, it will live on as a free speech initiative. The Flying Dog Brewery won a First Amendment court case (6th Cir. opinion here) against the State of Michigan. With the money it was awarded, the brewery will start a non-profit initiative tagged “The 1st Amendment Society.” Flying Dog wants a component of that initiative to involve a book club run by a public library (but one located at its brewery).

The initiative is set to be launched on May 31st at the National Press Club.

In this regard, the Frederick County Public Library plans to begin book club meetings this summer, which will be held on the second Wednesday of each month at 6:00 pm. The focus of the club will be banned books and the First Amendment.

Upcoming Banned Book Events:

  1. June 8: Garrett Epps will discuss Whitman’s Leaves of Grass
  2. July 13: Michelle Markey Butler  will discuss Harry Potter and the Sorcerer’s Stone
  3. August 10: Ronald Collins, “The Poem that Howled Against Censorship: The Story of the Attempt to Ban a Book of Poems”

ht: Bryan Thomas Hissong

Flying Dog Brewery Invigorated By Freedom of Speech Ruling over Raging Bitch Beer Name, The Full Pint, March 6, 2015

New & Forthcoming Scholarly Articles by Kitrosser & Gora

Abstract:    In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the First Amendment by virtue of their privileged access both to information and to communication channels for conveying it. The special communication channels to which employees have access – including internal channels – can be uniquely effective in supporting accountability and the rule of law, and thus in fulfilling core free speech values.

I consider how a fuller conception of special value – as well as a more sharply defined government interest in limiting employee speech – ought to impact the doctrine of public employee speech. I propose that, where work product speech can confidently be identified, courts should consider whether employees were disciplined based on a genuine, not pretextual assessment of work product quality. Crucially, in cases where employees were hired to render independent professional judgments, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments. Only disciplinary actions based on quality-based assessments should be exempt from further scrutiny. As a second-best, but perhaps more realistic near-term alternative, I also consider means to limit Garcetti’s reach.

Abstract:  The Supreme Court’s Citizens United decision is perhaps the Roberts Court’s most well-known and controversial ruling. It has been criticized and, indeed, reviled, by the President of the United States on down. It is also cited as Exhibit A for the proposition that the Roberts Court is a relentlessly pro-business institution in its key decisions. In this chapter of a book entitled Business and the Roberts Court, I contend that both the criticism of the decision and of the Court is wrong. In my view, Citizens United is a decision which embodied and applied classic First Amendment principles. In doing so, the Court freed labor unions, non-profit organizations and yes, business corporations, from unwarranted restraints on their ability to speak on behalf of their members, supporters, shareholders and adherents. In protecting free speech and political freedom, the landmark decision was part of a larger Roberts Court pattern of deregulatory rulings, not just in the campaign finance area, but in a number of First Amendment contexts far removed from that area. Indeed, many of the Court’s rulings manifest a strongly libertarian caste to them with a pervading theme that where free speech is concerned, it is the people, not the government, who get to decide what form and content that speech will take. In the end, the Citizens United decision, embodying these principles, reflects the work not of a pro-business Court, but of a pro-free speech Court.

New & Notable Blog Posts

The impending presidential contest between Hillary Clinton and Donald Trump is depressing for many reasons. One reason it that both candidates have abysmal records on free speech and they both seem fundamentally hostile to very idea of the First Amendment placing any constitutional limits on government power.  — Damon Root

Damon Root, Trump vs. Clinton Is Terrible News for Fans of Free Speech and the First Amendment,, May 4, 2016

News, Editorials, Op-eds & Blog Posts 

  1. Editorial, Trump: presumptive nominee with First Amendment problem, The Daily Iowan, May 10, 2016
  2. Alex Zielinski, New Utah Law Will Require Abortion Doctors To Lie To Their Patients, ThinkProgress, May 10, 2016
  3. James Parks, ESPN cites First Amendment in Jason Pierre-Paul case, 247 Sports, May 9, 2016
  4. Changing Closets: Transgendered Youths’ Right to Dress in Public Schools and the First Amendment, The National Law Review, May 10, 2016
  5. Peter Van Buren, Secret Service Handcuffs The First Amendment, Anti-War Blog, May 9, 2016
  6. Justin Emerson, Trump rally in Fountain Hills sparks First Amendment discussion, Cronkite News, May 9, 2016
  7. Editorial, First Amendment protects ‘Redskins‘, Los Angeles Times, May 6, 2016
  8. Steve Marroni, Student’s Facebook ‘joke’ about bomb threat not protected by First Amendment, judge rules, PennLive, May 6, 2016
  9. Oregon DOJ Encourages Surveillance Of First Amendment Activities; Acts Surprised When Agents Do Exactly That, TechDirty, May 6, 2016
  10. Nicholas Fisher, Clinton Olsasky, Krista Johnson & Lyle Muller, On campus, civility and First Amendment in conflict, Des Moines Register, May 2, 2016


This Day in First Amendment History

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. Lee v. Tam
  2. Dart v.
  3. Pro-Football v. Blackhorse 
  4. Scholz v. Delp
  5. Herson v. City of Richmond
  6. Packingham v. North Carolina

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, #109: Wednesday, May 18, 2016

LAST SCHEDULED FAN POST, #107FTC’s Power to curb misleading ads remains intact

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2 Responses

  1. Mike De Lanoy says:

    Anyone,anywhere at anytime nowadays can skew data to make it spew forth any result they want. Those whom forget history,etc(sorry to paraphrase badly) are doomed to repeat it!