FAN 111 (First Amendment News) Flying Dog Brewery Launches First Amendment Society

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

Free beer was being served as the audience gathered yesterday for a press conference at the National Press Club in Washington, D.C. to hear Jim Caruso (CEO of Flying Dog Brewery), Alan Gura (a DC-based constitutional law litigator), and Erin Weston (senior Director of Communications for Flying Dog). The three were there to discuss their First Amendment victory in Flying Dog Brewery v. Michigan Control Commission (6th Cir., 2015). More importantly, they were there to formally launch a new free-speech initiative. Ms. Weston will oversee the initiative.

The “First Amendment Society” is a non-profit initiative started by Flying Dog. The seed money for the campaign came from the damages award the brewery received from its victory in the Sixth Circuit.

Dean Lucy Dalglish

Dean Lucy Dalglish

One component of the initiative will be a First Amendment scholarship program done in conjunction with the  Philip Merrill College of Journalism at the University of Maryland, of which Lucy Dalglish (former executive director of the Reporters Committee for Freedom of the Press) is dean. Dalglish was present at yesterday’s press conference

Another component of the initiative will involve a a partnership with a public library. Staring next week, the Frederick County Public Library will host a series of lectures focusing on banned books and the First Amendment. The first three of those events will be held at 6:00 p.m. on the following dates:

  1. June 8Garrett 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”
L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

Moved to action by the Michigan Liquor Control Commission’s attempt to ban the company’s “Raging Bitch” beer from being sold within the state, Jim Caruso tagged the experience as “an outrageous violation of our First Amendment rights.” It was that experience that prompted him to launch the First Amendment Society. In the course of the press conference, Caruso was emphatic that “this is not a marketing tactic.” Alan Gura, the lawyer who successfully argued the case, echoed that point as he discussed the merits of the case and why it was important to litigate it.

Some of those present at the press conference were Robert Corn-Revere, Walter Olson, Nico PerrinoIlya Shapiro, and Bryan Thomas Hissing, Community Services Coordinator for the Frederick County Public Library

New Book on Child Pornography Law

Professor Carissa Byrne Hassock

Professor Carissa Byrne Hessick

The book is edited by Professor Carissa Byrne Hessick and is titled Refining Child Pornography Law Crime, Language, and Social Consequences (University of Michigan Press, June 2016). Here is the abstract for the just-released book:

The legal definition of child pornography is, at best, unclear. In part because of this ambiguity and in part because of the nature of the crime itself, the prosecution and sentencing of perpetrators, the protection of and restitution for victims, and the means for preventing repeat offenses are deeply controversial. In Refining Child Pornography Law, experts in law, sociology, and social work examine child pornography law and its consequences in an effort to clarify the questions and begin to formulate answers. Focusing on the roles of language and crime definition, the contributors discuss the increasing visibility child pornography plays in the national conversation about child safety, and present a range of views regarding the punishment of those who produce, distribute, and possess materials that may be considered child pornography.

Introduction by  Carissa Byrne Hessick

Part I. Defining Child Pornography Crimes

A. Constitutional Issues

  • The Context and Content of New York v. Ferber —  James Weinstein
  • Setting Definitional Limits for the Child Pornography Exception — Carissa Byrne Hessick

B. Consequences of the Legal Definition

  • The “Dost Test” in Child Pornography Law: “Trial by Rorschach Test” — Amy Adler
  • The Language of Child Sexual Abuse and Exploitation —  Mary Graw Leary

Part II. Redefining Child Pornography Law

A. The Special Case of Possession

  • Questioning the Modern Criminal Justice Focus on Child Pornography Possession  — Carissa Byrne Hessick
  • The Dignitary Harm of Child Pornography: From Producers to Possessors — Audrey Rogers
  • Not Just “Kiddie Porn”: The Significant Harms from Child Pornography Possession — Paul Cassell, James Marsh, and Jeremy Christiansen

B. Child Pornography Definitions at Work

  • Challenges in Investigations and Prosecutions of Child Pornography Crimes —  Wendy Walsh, Melissa Wells, and Janis Wolak
  • A Critical Evaluation of the Federal Sentencing Guidelines for Child Pornography Offenses —  Troy Stabenow
  • Political and Empirical Controversies Threaten the Federal Child Pornography Guidelines — Melissa Hamilton

Laurence Tribe: Tribe: FCC Broadband Privacy Proposal Violates First Amendment

Professor Laurence Tribe

Professor Laurence Tribe

In a story for Broadcasting and Cable, John Eggerton reported that “ISPs wired and wireless have submitted a paper to the FCC by constitutional scholar Laurence Tribe that says the commission’s broadband privacy proposal threatens speech rights.”

“The National Cable & Telecommunications Association, CTIA and USTelecom commissioned the paper, which they submitted Friday, the deadline for initial comments in the proceeding.”

“‘The FCC’s proposed rules would violate the First Amendment,” Tribe concluded. “At minimum, they raise a host of grave constitutional questions and should not be adopted.'”

“The FCC is proposing to require ISPs to get affirmative (opt in) permission from subs to share information with third parties in most instances, a requirement not placed on edge providers like Google and Facebook for their own data collection and monetizing.”

In the News: Donald Trump & the Press

Jason Easley, An Outraged CNN Schools Wannabe Dictator Trump On The First Amendment, Politicus USA, May 31, 2016

“CNN took the presumptive Republican presidential nominee to school, as Dana Bash explained to Trump the meaning of the First Amendment and the purpose of a free press.”

Dana Bash

Dana Bash

“CNN’s Dana Bash said, ‘You know, I pride myself on being dispassionate, as we all do, but this is a situation where I don’t think we should be dispassionate, and the reason is because just take a step back to where we were, and where you guys were leading into this press conference in New York.'”

“Bash said that this was supposed to be a good news story for Trump, but, ‘Instead, what did he do? He attacked the press as you said as sleazy as dishonest multiple times. And not to get too corny about it, but it is the press. Number one, it is our jobs to ask questions particularly of public figures especially somebody who wants to be the leader of the free world when they make a promise, and they do it in a very public way like he did with this big rally for veterans, it is our job to say where’s the money? Where did it go? How much did you raise? It is a fundamental requirement of a free press. It’s what makes us different than North Korea or other places. And he hasn’t had to answer questions like this in his prior life, he’s been a public figure for decades, and he hasn’t had to answer questions because he’s been a public figure in the press if you will, but he’s been a private citizen. It’s a different ballgame now, so it is up to us to ask the questions, and I think it’s because like Drew Griffin and others were asking questions about where this money was going that these veterans groups were able to get this money.’ . . .”

In the News: “Hogan case marks turning point in ‘newsworthiness’ debate, UB first amendment expert says” 

Professor Samantha Barbas

Professor Samantha Barbas

Rachel Stern, in a story for the News Center at the University of Buffalo, writes: “A judge denied Gawker Media’s motion for a new trial in the sex-tape case brought by wrestler Hulk Hogan.”

“‘It’s a ruling that Samantha Barbas, associate law professor at the University at Buffalo, says may lead media organizations to think twice before publishing sexual or sensational content about a celebrity.’

“‘The reason this case is so significant is because of the First Amendment issues it brings up. The stakes in this case were already high, but with the public attention around the case, they’ve gotten even higher,’ says Barbas, whose research focuses on the First Amendment, privacy law and defamation. ‘The Hogan v. Gawker case will go down in history as a pivotal moment in the battle between privacy and freedom of the press.'”

“‘Already, I think, this case has affected the media, and the ultimate outcome of the lawsuit could have a significant impact on media practices and freedom of the press going forward. Media organizations may think twice before publishing anything sexual or sensational about a celebrity because of what’s happened in the Hogan case.’ . . . ”

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. Packingham v. North Carolina

Review Denied

  1. Herson v. City of Richmond
  2. Hodge v. Talkin
  3. POM Wonderful, LLC v. FTC
  4. Cressman v. Thompson
  5. Justice v. Hosemann 
  6. Electronic Arts, Inc. v. Davis
  7. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  8. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  9. Town of Mocksville v. Hunter
  10. Miller v. Federal Election Commission
  11. Sun-Times Media, LLC v. Dahlstrom
  12. Rubin v. Padilla
  13. Hines v. Alldredge
  14. Yamada v. Snipes
  15. Center for Competitive Politics v. Harris
  16. 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 June 2, 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, #112: Wednesday, June 8, 2016

LAST SCHEDULED FAN POST, #110: Steve Shapiro to Step Down as ACLU’s Legal Director

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