FAN 109 (First Amendment News) Abrams Institute to Host Event on Commercial Speech

abrams-logoOn Monday, June 13th (8:45 a.m. – 2:30 p.m.) the Floyd Abrams Institute for Freedom of Expression will host a major conference on the commercial speech doctrine. The event will take place in New York City.

Click here to register for the event.

This conference on the commercial speech doctrine will focus on its changing and varying definitions, the regulation and potential liabilities based upon it, and the potential impact of Sorrell and Reed, two Supreme Court decisions. The discussion will center on its impact on the content creation community, lawyer speech, food and drug and other areas of corporate speech

Interview: Who’s Afraid of Commercial Speech? — 26 Years Later

Ron Collins (Harold S. Shefelman Scholar, University of Washington, School of Law) will interview Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit). 

The Shifting Boundaries Between Commercial & Non-Commercial Speech

A look at the varying definitions of commercial speech, historical basis for the commercial speech doctrine, and the likely impact of the Supreme Court’s decisions in Sorrell vIMS Health, Inc. and Reed v. Town of Gilbert.

  • Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  • Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  • Tamara Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law
  • Martin Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law

Moderator:  Vince Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

Commercial Speech:  The Definition Matters

“Commercial speech” is a dividing line between free expression and potential multimillion dollar liabilities in many areas of law.  A specific look at that divide in attorney, trademark, corporate-financial, and food and drug commentary.

  • Steven G. Brody, Morgan, Lewis & Bockius LLP
  • Denise Esposito, Covington & Burling and Former Chief of Staff to the Commissioner of the U.S. Food and Drug Administration (FDA)
  • Joshua M. King, Chief Legal Officer, Avvo, Inc.
  • Rebecca Tushnet, Professor of Law, Georgetown Law School

Moderators:  Chris Beall, Levine Sullivan Koch & Schulz LLP and Bruce Johnson, Davis Wright Tremaine LLP

Brand Journalism, Sponsored Content and the First Amendment

Difficult issues involving rights of publicity, copyright fair use and consumer protection disclosures arise in the First Amendment No Man’s Land between obvious commercial advertising and editorial speech by traditional media.  This panel examines the disparate jumble of legal tests and standards that apply when brands sponsor, influence or author news stories, features or commentary on matters of public concern and considers whether they can be harmonized with evolving commercial speech doctrine.

  • Deirdre Sullivan, The New York Times Company
  • Rick Kurnit, Frankfurt Kurnit Klein + Selz PCMary K. Engle, Federal Trade Commission, Associate Director, Division of Advertising Practices
  • Allison Lucas, BuzzFeed, General Counsel

Moderator:   Scott Dailard, Cooley LLP

Strategic Issues:  What questions are we asking now? Where is the law going?

An all room discussion on the strategic issues that should be raised in litigation concerning commercial speech and the First Amendment.

Moderator:  Timothy L. Alger, Greenberg Traurig LLP

The conference is sponsored by: Avvo Inc., Cooley LLP, Davis Wright Tremaine LLP, Frankfurt Kurnit Klein & Selz PC, Greenberg Traurig LLP, and Levine Sullivan Koch & Schulz, LLP.

Latest First Amendment Salon: Stone & Posner

Judge Posner & Prof. Stone

Judge Richard Posner & Prof. Geoffrey Stone

Last Monday The First Amendment Salon went on the road again, this time to the University of Chicago Law School. (The first “on the road” salon was in Los Angeles with a dialogue between Erwin Chemerinsky and Eugene Volokh.)

Geoffrey Stone (who serves on the Salon’s advisory board) interviewed Judge Richard Posner. The topic: “The Centrality of the First Amendment.”

By all measures, it was a quite an evening as Stone engaged the dapper jurist, drawing him out time and again. The result: a rare display of candor on a variety of subjects ranging from the significance of the press clause to the display of confederate flags.

To invoke the words of their former boss, Justice William Brennan, the discussion was atypically uninhibited, surprisingly robust, and exceptionally wide open.

Speaking in measured tones sprinkled with occasional chuckles, Posner seldom held back as the turn of his mind ventured from one provocative thought to another — all manifested in words, no less. Stone asked him about everything from the Dennis v. U.S. ruling (correctly decided), to the Pentagon Papers Case (correctly decided), to the wisdom of extending First Amendment protection to Edward Snowden re the release of secret government documents (not much simpatico here).

Along the dialogic way Posner, ever the maverick, occasionally answered Stone’s questions with a question only to have the Chicago professor up the conversational ante to tease out this or that point.

When the time came for questions from the audiences in New York and Washington, D.C. (via teleconferencing), the tenor remained composed yet spirited as the Judge replied with singular frankness concerning topics such as

Sometimes the discussion veered onto other topics such as:

  • executive power in wartime (should be considerable with little or no interference from the courts)
  • the Second Amendment and the individual right to bear arms (critical) and
  • Justice Holmes’s general deference to the democratic process (fine except in cases like Abrams).

Among other things, Posner also leveled a hearty blow at Roger Taney, this for his 1861 opinion in Ex Parte Merryman in which the Chief Justice took constitutional exception to President Lincoln’s suspension of the writ of habeas corpus. Pure folly by Posner’s jurisprudential measure.

All in all, everyone remained relaxed even as eyebrows raised from time to time. It made for a memorable evening. There was, of course more, much more. But I’ll stop there for now.

$60 Million Initiative @ Columbia University: The Knight First Amendment Institute

This from Mike McPhate writing in the New York Times: “The fight to preserve freedom of the press is getting a $60 million war room.”

“The John S. and James L. Knight Foundation and Columbia University announced on Tuesday that they would team up to create an institute at the university’s Manhattan campus dedicated to expanding in the digital age the freedoms of speech and the press outlined in the First Amendment.”

“The Knight First Amendment Institute would take on legal battles that newsrooms have found increasingly too costly to pursue on their own, the groups said in a statement.”

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This from Bamzi Banchiri writing in the Christian Science Monitor: “The First Amendment is . . . getting a new champion: The First Amendment Institute at Columbia University, a $60-million initiative, that seeks to advance First Amendment rights through research, education, and litigation.”

“In recent years there has been growing concern that the First Amendment is losing its main champion, a news industry that is today often crippled by financial challenges. The industry now lacks resources that it enjoyed before the Internet era. Yet, at the same time, thorny new First Amendments issues – created in an era of Wikileaks and Edward Snowden revelations – are constantly being raised. These involve questions that judges couldn’t possibly have foreseen in First Amendment rulings involving cases such as the Pentagon Papers.”

Knight Foundation Press Release

Cato Institute Honors Free-Speech Advocate 

Fleming Rose

Fleming Rose

The Cato Institute recently announced that Flemming Rose, Danish journalist and author of The Tyranny of Silence, will receive the 2016 Milton Friedman Prize for Advancing Liberty, a $250,000 biennial award presented to an individual who has made a significant contribution to advance human freedom.

“In 2005, Rose, then an editor at the Danish newspaper Jyllands-Posten, sparked worldwide controversy when he commissioned and published 12 cartoons meant to depict the prophet Muhammad. The illustrations, intended to draw attention to the issue of self-censorship and the threat that intimidation poses to free speech, provoked deadly chaos in the Islamic world and put Rose in the center of a global debate about the limits to free speech in the 21st century. . . .”

“Established in 2002 and presented every two years, the Milton Friedman Prize for Advancing Liberty is the leading international award for significant contributions to advancing individual liberty. The Nobel laureate economist Milton Friedman died in November of 2006.””The Milton Friedman Prize for Advancing Liberty’s Biennial Dinner and award presentation will be held at the Waldorf-Astoria in New York City, on May 25, 2016.”

Colorado Disclosure Law Ruled Unconstitutional

Allen Dickerson

Allen Dickerson

This from Matt Nese at the Center for Competitive Politics: “A federal appeals court unanimously affirmed a lower court decision declaring that Colorado’s ballot issue disclosure law violates the First Amendment for groups raising or spending less than $3,500. The decision was handed down late Wednesday by three judges nominated by President Barack Obama to the Tenth Circuit Court of Appeals in the case, Coalition for Secular Government  v. Williams.”

“‘Requiring a small, two-person group to register with the government, report every detail of its operations down to the purchase of postage stamps, and disclose nearly all of its financial supporters to the government, is inherently and obviously burdensome,’ said Center for Competitive Politics Legal Director Allen Dickerson, who represented CSG in the litigation. ‘We are pleased the court found this complex law violated the First Amendment. Perhaps multi-million dollar political organizations can afford those burdens, but small citizen groups cannot. The result is a campaign finance system that harms small, grassroots organizations that form the backbone of our society. The Court of Appeals was right to protect these groups.'”

Campus Free-Speech Watch

  1. Aaron Hanlon, The “Free Speech” Charade, The New Republic, May 17, 2016 (responding to: Michael Bloomberg & Charles Koch, Why Free Speech Matters on Campus, Wall St. Journal, May 12, 2016)
  2. Sara Maslar-Donar, University of Missouri report would clarify campus free speech policies, ABC17 News.com, May 17, 2016
  3. Chris Marchese, A Messy End to the Semester: Harvard, Blacklisting, and Curtailing Student Rights, The Torch, May 17, 2016
  4. Howard Fischer, Free speech goes both ways as Ducey signs HB2548 into law, Verde Independent, May 17, 2016
  5. Shelby Emmett, Arizona Governor Signs Bills Protecting Free Speech on College CampusesThe Torch, May 17, 2016
  6. David Grasso-Ortega, Meet the Defenders of Free Speech on Campus, HeatStreet, May 17, 2016
  7. Luke Ripp, Study: Faculty Should Mobilize for Independent Protections for Academic RightsThe Torch, May 16, 2016

Jeff Rosen: New Book on Brandeis

Jeffrey Rosen has a new book: Louis D. Brandeis: American Prophet (Yale University Press, June 1, 2016)

Jeffrey Rosen

Jeffrey Rosen

Abstract: According to Jeffrey Rosen, Louis D. Brandeis was “the Jewish Jefferson,” the greatest critic of what he called “the curse of bigness,” in business and government, since the author of the Declaration of Independence. Published to commemorate the hundredth anniversary of his Supreme Court confirmation on June 1, 1916, Louis D. Brandeis: American Prophet argues that Brandeis was the most farseeing constitutional philosopher of the twentieth century. In addition to writing the most famous article on the right to privacy, he also wrote the most important Supreme Court opinions about free speech, freedom from government surveillance, and freedom of thought and opinion. And as the leader of the American Zionist movement, he convinced Woodrow Wilson and the British government to recognize a Jewish homeland in Palestine. Combining narrative biography with a passionate argument for why Brandeis matters today, Rosen explores what Brandeis, the Jeffersonian prophet, can teach us about historic and contemporary questions involving the Constitution, monopoly, corporate and federal power, technology, privacy, free speech, and Zionism.

New & Notable Blog Posts

David Post, On ‘ample alternative channels of communication,’ the First Amendment and social networking, The Volokh Conspiracy, May 16, 2016

 Rick Hasen, Federal Court Strikes Down Key Montana Contribution Limits, Setting Up Quick 9th Circuit Battle and Potential SCOTUS Deadlock, Election Law Blog, May 17, 2016

Prof. Richard Hasen

Prof. Richard Hasen

“Senior federal district court judge Charles Lovell has issued this 30 page opinion granting summary judgment to plaintiffs challenging key provisions of Montana’s campaign finance law, including individual and committee contributions to cadidates for governor and state offices. This case has been bouncing around for years, and has been on remand from the 9th Circuit, but at bottom the trial court found the following: applying the 9th Circuit’s earlier opinion in this case and the Supreme Court’s definition of corruption from Citizens United, the court could only uphold Montana’s limits if they were justified to prevent quid pro quo corruption or its appearance, and that the limits were closely drawn toward that purpose. In a brief (I’d say quite superficial) analysis, the court held that Montana satisfied neither prong of this test. The court held that there was not enough evidence of corruption or its appearance to justify the law, and in any case the real motivation for the law was to promote political equality, an impermissible interest. (There are shades of the debate at the Supreme Court in the Arizona Free Enterprise Club case here.) The court further held there was not enough evidence that the limits were closely drawn (no surprise, since the judge found no real interest in the law).”

“So what happens next? I expect the state of Montana to seek emergency relief from the Ninth Circuit, and in the meantime (as happened last time) I expect the Republican Party of Montana to quickly flood the coffers of those they want to support while this order is in effect (see the end of the opinion, where this happened with a $500,000 contribution from the party the last time around). Right now there are NO individual contribution limits in Montana, and the judge invites the state to enact new limits the next time the Legislature is in session.”

Go here for more.

Stone Interviews Snowden: “Live from Russia”

Forthcoming Scholarly Articles

  1. Benjamin Plener Cover, The First Amendment Right to a Remedy, UC Davis Law Review (forthcoming, 2016)
  2. Derek T. Muller, Ballot Speech, Arizona Law Review (forthcoming 2016)

News, Editorials, Op-eds & Blog Posts

→ Ben Rosen, Inspired by Trump, new Arizona law redefines free speech, Christian Science Monitor, May 17, 2016 Note: “The Arizona law increases penalties against protesters who block access to a political rally.”

  1. Maxwell Tani, Obama chides Rutgers students for pressuring Condoleezza Rice to back out of commencement speech, Yahoo, May 17, 2016
  2. David Ferrara, Red Rock Resort trespassing citation leads to First Amendment battleLas Vegas Review-Journal, May 15, 2016
  3. Cameron Knight & Michael Killan, Cincinnati Enquirer wins Ohio First Amendment award, Cincinnati.com, May 15, 2016
  4. Paul Jossey, Are Plutocrats Really Uniting?, Center for Competitive Politics, May 13, 2016
  5. Richard Hasen, Bob McDonnell Ruling Will Not Legalize Corruption, National Law Journal, May 12, 2016
  6. Steven Schwinn, D.C. Circuit Rules Against Serbian PM Supporter in Defamation Suit, Constitutional Law Prof Blog, May 10, 2016

Today in First Amendment History 

Supreme Court strikes down California’s Red Flag law in Stromberg v. California (1931) (7-2 per Hughes, C.J., with McReynolds, J., dissenting & Butler, J., dissenting) (ht: Today in Civil Liberties History)

The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. — Charles Evan Hughes

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. Delaware Strong Families v. Denn
  2. Lee v. Tam
  3. Dart v. Backpage.com
  4. Pro-Football v. Blackhorse 
  5. Scholz v. Delp
  6. Herson v. City of Richmond
  7. Packingham v. North Carolina

Review Denied

  1. Hodge v. Talkin
  2. POM Wonderful, LLC v. FTC
  3. Cressman v. Thompson
  4. Justice v. Hosemann 
  5. Electronic Arts, Inc. v. Davis
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  7. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  8. Town of Mocksville v. Hunter
  9. Miller v. Federal Election Commission
  10. Sun-Times Media, LLC v. Dahlstrom
  11. Rubin v. Padilla
  12. Hines v. Alldredge
  13. Yamada v. Snipes
  14. Center for Competitive Politics v. Harris
  15. 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 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 POST, #110: Wednesday, May 25, 2016

LAST SCHEDULED FAN POST, #108Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play

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