FAN 113 (First Amendment News) “Abrams Court” Breaks with Tradition & Allows Cameras in Courtroom


June 15, 2016, Washington, D.C. It was a remarkable moment when the Abrams Court sat to hear the case of Pear v. United States. The two issues before the eight-member Court were:

1.) Does the All Writs Act empower a court to compel a third-party to design new software to provide the “reasonable technical assistance” contemplated by the Supreme Court in United States v. New York Telephone Company, 434 U.S. 159 (1977)?

2.) Does a court order requiring a technology company to develop software to overcome security measures and to authenticate the software to obtain access to private information violate the First Amendment?

Chief Justice Floyd Abrams

Chief Justice Floyd Abrams

Before oral arguments in the novel case began, however, Chief Justice Floyd Abrams (suited in his specially-designed robe) made the following announcement:

At the outset, I have an  announcement. As may be evident, this proceeding of this Court will be televised. This Court has long barred cameras from our courtroom  for publicly unstated and perhaps difficult to defend reasons.

At that point the Chief Justice paused and smiled, and then continued:

Whatever the wisdom of that decision in the past, we see no reason to do so today and a powerful basis to allow cameras today. This is an important case, one in which there is great and deserved public interest. Allowing the public to see this branch of government in this public phase of its work is undoubtedly in the public interest and we serve that interest by opening this Court to far greater public scrutiny.

The Chief Justice next turned to counsel and admonished them:

I am confident that counsel will comport themselves appropriately and have no doubt that members of this Court will do so. 

With that the video-recorded moot court event hosted by the Newseum Institute began. Noted First Amendment lawyers Robert Corn-Revere and Ronald G. London represented Pear, and argued that the United States was asking the fictional company to create an entirely new function in providing access to an iPhone, thus creating new literary work — which would be protected by the First Amendment. (See Petitioners’ brief here)

Former assistant U.S. Attorney Joseph DeMarco, and co-counsel Jeffrey Barnum, a legal scholar and lawyer specializing in criminal and First Amendment law, argued the government does have the authority to compel companies to assist in a criminal investigation, and that there was no First Amendment protection for the kind of work the government was seeking — providing access only to a phone, not to the data it contained — for this single phone only.  (See Respondent’s’ brief here)

R.I. Governor Veteos “Revenge Porn” Bill

First Amendment lawyers and advocates have expressed concerns that htis particular bill is overbroad and vague, and, if enacted, will turn Rhode Island into an outlier on the protection of free speech. — Gov. Gina Raimondo

Gov. Gina Raimondo

Gov. Gina Raimondo

According to WPRI-12 News, “Gov. Gina Raimondo has issued the first veto of her tenure, rejecting a proposed ban on so-called ‘revenge porn’ as unconstitutional due to First Amendment concerns, her office announced Tuesday.”

“The bill, which cleared the General Assembly last week, was backed by Attorney General Peter Kilmartin. Supporters said it was designed to punish individuals who distribute sexually explicit material without the consent of everyone involved.”

“But watchdog groups including the American Civil Liberties Union and the New England First Amendment Coalition had urged Raimondo to veto the bill, describing it as unconstitutional, and in the end the governor agreed.”

We do not have to choose between protecting privacy rights and respecting the principles of free speech. The right course of action is . . . [to] craft a more carefully worded law that specifically addresses the problem of revenge porn, without implicating other types of constitutionally protected speech. — Gov. Gina Raimondo

Full Text of Governor Raymond’s veto message here.

8th Circuit Orders New Trial in Jesse Ventura Defamation Case

Here are the key facts as described in Chief Judge William Riely’s majority opinion in Ventura v. Kyle (8th Cir., June 13, 2016):

Jesse Ventura

Jesse Ventura

“Before his death, Chris Kyle was a sniper for a United States Navy Sea, Air and Land (SEAL) team. He authored the book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History (American Sniper). In the book, Kyle described punching a ‘celebrity’ referred to as ‘Scruff Face’ who was making offensive remarks about the SEALs at a gathering following the funeral of a SEAL killed in combat. In interviews about the book, Kyle revealed ‘Scruff Face’ was James Janos, better known as Jesse Ventura. Ventura, who was at the bar but denied a fight occurred, sued Kyle in this diversity action under Minnesota law for defamation, misappropriation, and unjust enrichment, alleging Kyle fabricated the incident. The jury found in favor of Ventura on the defamation claim, awarding $500,000 in damages, and found in Kyle’s favor on the misappropriation claim. Serving in its advisory role as to the equitable unjust-enrichment claim, the jury recommended an award of approximately $1.35 million, which the district court adopted. Kyle appeals the district court’s denial of his motion for judgment as a matter of law or a new trial.”

The majority opinion (joined by Judge Bobby Shepherd) reversed the unjust-enrichment judgment and vacated and remanded the defamation judgment for a new trial.

Judge Lavenski Smith concurred in part and dissented in part: “I concur in the majority’s reversal of the unjust-enrichment judgment. However, I disagree with majority’s decision to vacate and remand the defamation judgment for a new trial because of references to insurance in trial testimony and closing argument.”

→ Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:

  1. The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
  2. The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate

Court Dismisses Challenge to Met Depictions of Paintings of Jesus

The case is Joseph v. Metropolitan Museum of Art (June 15, 2016). Here is how federal district court Judge Gregory H. Wood began his opinion:

“Plaintiff Justin Renel Joseph, proceeding pro se, alleges that the public display of certain fifteenth and eighteenth century paintings at the Metropolitan Museum of Art (the “Met”) violates the Civil Rights Act and the First Amendment of the United States Constitution because the artwork contains depictions of Jesus Christ that he asserts are historically inaccurate. Plaintiff seeks an order from this Court directing the museum to remove the paintings from its display. Because the complaint fails to plausibly allege that the public display of artwork at the Met violates the Civil Rights Act or the First Amendment, and for the reasons outlined below, Defendants’ motions to dismiss are GRANTED without leave to amend the complaint.”

"The Resurrection" (Metropolitan Museum of Art)

The Resurrection (Metropolitan Museum of Art)

“Plaintiff alleges that he visited the Met on November 26, 2015. Compl. ¶¶ 2, 13. During that visit, he encountered four works of art depicting Jesus Christ: (1) “The Resurrection,” created by Italian artist Perugino circa 1500; (2) “The Crucifixion,” created by Italian artist Francesco Granacci between 1500 and 1510; (3) “The Miracle of the Loaves and Fishes,” created by Italian artist Tintoretto between 1545 and 1550; and (4) “The Holy Family with Angels,” created by Italian artist Sebastiano Ricci circa 1700. Id. ¶ 2. Plaintiff attached pictures of the four paintings, taken from the Met’s website, as exhibits to the complaint. See Compl., Exs. A–D. The four pieces of artwork are part of the Met’s permanent collection. Id. ¶ 5.”

“Plaintiff, “who is of Hebrew and African descent,” alleges that he was offended and suffered various psychological harms upon viewing the artwork because they “depict the historical and public figure of Hebrew descent, Jesus Christ, as a blonde haired, fair-skinned, Aryan adult male, despite that an adult male native to the Middle-Eastern region of Hebrew descent . . . would not be genetically disposed to possess such features.” Id. ¶¶ 3, 16–17, 28. Plaintiff further alleges that the “flagrant” public display of the centuries-old paintings in a museum is “anti-Semitic, racist and offensive” because the display “endor[ses] the cultural theft of the historical and public figure of Jesus Christ” from “the Hebrew people and the people of Middle-Eastern descent.” Id. ¶¶ 4-6, 23, 26.”

Charlie Rose Wins Fred Friendly First Amendment Award

This from CT Post: “For more than two decades, Quinnipiac University’s School of Communication in Hamden has presented its Fred Friendly First Amendment Award in memory of Friendly, the late CBS president and champion of freedom of speech.”

“Past recipients have included a who’s who of iconic news men and women, including Dan Rather, Morley Safer, Lesley StahlGwen IfillScott Pelley and Bill Moyers.”

“This year’s honoree, Charlie Rose, holds his own and more among the stable of past winners. Rose, best known as a co-anchor on CBS This Morning, with former WFSB anchor Gayle King and Norah O’Donnell, and host of two PBS shows, CharlieRose: The Week and his longtime weeknight one-on-one interview program, Charlie Rose.”

Forthcoming Book by Barney Rosset on Censorship

Barney Rosset

Barney Rosset

Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (OR Books, January 10, 2017)

Here is the publisher’s abstract:

“Genet…Beckett…Burroughs…Miller…Ionesco, Oe, Duras. Harold Pinter and Tom Stoppard. Hubert Selby Jr. and John Rechy. The legendary film I Am Curious (Yellow). The books that assaulted the fort of propriety that was the United States in the 1950s and ’60s, Lady Chatterley’s Lover and The Tropic of Cancer. The Evergreen Review. Victorian “erotica.” The Autobiography of Malcolm X. A bombing, a sit-in, and a near-fistfight with Norman Mailer. The common thread between these disparate elements, a number of which reshaped modern culture, was Barney Rosset.”

“Rosset was the antidote to the trope of the “gentleman publisher” personified by other pioneering figures of the industry such as Alfred A. Knopf, Bennett Cerf and James Laughlin. If Barney saw a crowd heading one way—he looked the other. If he knew something was forbidden, he regarded it as a plus. Unsurprisingly, financial ruin, along with the highs and lows of critical reception, marked his career. But his unswerving dedication to publishing what he wanted made him one of the most influential publishers ever.”

“Rosset began work on his autobiography a decade before his death in 2012, and several publishers and a number of editors worked with him on the project. Now, at last, in his own words, we have a portrait of the man who reshaped how we think about language, literature—and sex. Here are the stories behind the filming of Norman Mailer’s Maidstone and Samuel Beckett’s Film; the battles with the US government over Tropic of Cancer and much else; the search for Che’s diaries; his romance with the expressionist painter Joan Mitchell, and more.”

“At times appalling, more often inspiring, never boring or conventional: this is Barney Rosset, uncensored.”

* * * *


  1. Gerald R. Butlers, Jr., Banned in Kansas: Motion Picture Censorship, 1915-1966 (University of Missouri, December 28, 2016)
  2. Patricia L. Dooley, Freedom of Speech: Reflections in Art and Popular Culture (Greenwood, November 30, 2016)
  3. Michael Huff & Andy Lee Roth, editors, Censored 2017 (Seven Stories Press, October 4, 2016)
  4. Pat R. Scales, Defending Frequently Challenged Young Adult Books: A Handbook for Librarians and Educators (Rowman & Littlefield Publishers, Sept. 2016)
  5. Jerry Barnett, Porn Panic!: Sex and Censorship in the UK (Zero Books, August 26, 2016)
  6. Kenneth Baker, On the Burning of Books: How Flames Fail to Destroy the Written Word (Unicorn Press, August 15, 2016)
  7. Gunter Lewy, Harmful and Undesirable: Book Censorship in Nazi Germany (Oxford University Press, July 14, 2016)

More Forthcoming Books

  1. Richard Kluger, Indelible Ink: The Trials of John Peter Zenger and the Birth of America’s Free Press (W. W. Norton & Company, September 13, 2016)
  2. Akeel Bilgrami & Jonathan R. Cole, editors, Who’s Afraid of Academic Freedom? (Columbia University Press, September 6, 2016)
  3. José A. Cabranes, Kate Stith & Nathaniel A.G. Belinsky, Campus Speech in Crisis: What the Yale Experience Can Teach America (Encounter Books, August 30, 2016)

Tsesis on Terrorist Speech 

Professor Alexander Tsesis

Professor Alexander Tsesis

Professor Alexander Tsesis has a forthcoming article coming out in the Vanderbilt Law Review. The article is titled “Terrorist Speech on Social Media.” Here is an abstract of the article:

“The presence of terrorist speech on the Internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and destruction.”

“Terrorist advocacy on the Internet raises special problems because it contains elements of political declaration and self-expression, which are typically protected by the First Amendment. However, terrorist organizations couple these legitimate forms of communication with calls to violence, recruitment to training, and indoctrination to belligerence. Incitement readily available on social media is sometimes immediate or, more often, calibrated to influence and rationalize future dangerous behaviors. This is the first article to analyze all the Supreme Court free speech doctrines that are relevant to the enactment of a constitutionally justifiable anti-terrorism statute. Such a law must grant the federal government authority to restrict dangerous terrorist messages on the Internet, while preserving core First Amendment liberties. Legislators should develop policies and judges should formulate holdings on the bases of the imminent threat of harm, true threats, and material support doctrines. These three frameworks provide the government with the necessary constitutional latitude to prosecute dangerous terrorist speech that is disseminated over social media and, thereby, to secure public safety, without encroaching on speakers’ right to free expression.”

Notable Blog Posts 

“On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.”

“Central to the First Amendment claim is the contention that the “event zone” is far too large and apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities. . . .”

New & Forthcoming Scholarly Articles

  1. Ezra Waldman, “Triggering Tinker: Student Speech in the Age of Cyberharassment,” University of Miami Law Review (forthcoming 2016)
  2. Terry Smith, “Bond v. Floyd and Expressive Proscriptions on the Partisan Gerrymander,” SSRN (June 19, 2016)
  3. Navid Khazanei, “First Amendment’s Homesickness, Second Amendment’s Homecoming: Militia as ‘501(C),’ Arms as ‘Code’,” SSRN (216)
  4. Hannibal Travis, “Free Speech Institutions and Fair Use of Copyrighted Work: A New Agenda for Copyright Reform,” Cardozo Arts & Entertainment Law Journal (2016)
  5. Marc J. Randazza, “Ulysses: A Mighty Hero in the Fight for Freedom of Expression,” University of Massachusetts Law Review (2016)

ACS Video: “The Weaponized First Amendment”

Screen Shot 2016-06-21 at 5.34.17 PM

Moderator, Linda Greenhouse  / Participants: Martin Redish, Daniel P. Tokaji, Tamara Piety & Paul M. Smith

→ YouTube video here.

News, Editorials, Op-Eds & Blog Posts

Floyd Abrams, “Use the First Amendment to Condemn Trump” (letter-to-editor), Wall Street Journal, June 19, 2016

  1. Walter Brasch, “Donald Trump vs. the First Amendment,” BuzzFlash, June 20, 2016
  2. Brynne O’Neal, “Activists on Film: Police Body Cameras and the First Amendment,” Huffington Post, June 20, 2016
  3. Daniel J. Bohan, “First Amendment ain’t what it used to be,” Journal Star, June 20, 2016
  4. Editorial, “First Amendment defenders ante up,” Gaston Gazette, June 20, 2016
  5. Valerie Richardson, “House panel turns up heat after states clam up on climate dissent probes,” Washington Times, June 19, 2016
  6. Vanessa Miler, “59 Years of Commemorating Academic Freedom: The Legacy of ‘Sweezy v. New Hampshire,” The Torch, June 17, 2016
  7. Gilad Edelman, “Cuomo and B.D.S.: Can New York State Boycott a Boycott?,” The New Yorker, June 16, 2016
  8. Erica Goldberg, “A Modest Concern with the D.C. Circuit’s First Amendment Analysis in Net Neutrality Case,” In a Crowded Theater, June 15, 2016

Today in First Amendment History: Potter Stewart’s Famous Quip 

This from Today in Civil Liberties History:

Justice Potter Stewart

Justice Potter Stewart

“In an important First Amendment case, the Supreme Court held in Jacobellis v. Ohio (1964), that the French film, The Lovers (Les Amants, in French) was not obscene. The film had been seized by Ohio authorities at the Heights Art Theater in Cleveland Heights, Ohio on November 13, 1959.

“For the Court, Justice William Brennan wrote: ‘We have viewed the film, in the light of the record made in the trial court, and we conclude that it is not obscene within the standards enunciated in Roth v. United States and Alberts v. California, which we reaffirm here.’ He earlier noted that in fact ‘there is an explicit love scene in the last reel of the film, and the State’s objections are based almost entirely upon that scene.'”

“In a concurring opinion, Justice Potter Stewart declined to define “hard core pornography,” but in what is the most famous quote from the case wrote: ‘But I know it when I see it, and the motion picture involved in this case is not that.'” 

Justice Stewart’s law clerks for that Term:

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.
  4. Pro-Football v. Blackhorse 
  5. Packingham v. North Carolina

Review Denied

  1. Scholz v. Delp
  2. Herson v. City of Richmond
  3. Hodge v. Talkin
  4. POM Wonderful, LLC v. FTC
  5. Cressman v. Thompson
  6. Justice v. Hosemann 
  7. Electronic Arts, Inc. v. Davis
  8. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  9. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  10. Town of Mocksville v. Hunter
  11. Miller v. Federal Election Commission
  12. Sun-Times Media, LLC v. Dahlstrom
  13. Rubin v. Padilla
  14. Hines v. Alldredge
  15. Yamada v. Snipes
  16. Center for Competitive Politics v. Harris
  17. 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, the last one of this Term, is on June 23, 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, #114: Wednesday, June 28, 2016

LAST SCHEDULED FAN POST, #112: “Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet

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