FAN 114 (First Amendment News) 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied
The big First Amendment news of the 2015 Term was the cases the Court declined to hear. But even in the one case the Justices actually decided (4-4 cases don’t count), they were of two minds. The result: no blockbuster opinion like last Term’s Reed Town of Gilbert (2015).
The Court’s Schizophrenic Moment
The only First Amendment expression case the Justices actually decided was a government employee case, Heffernan v. City of Paterson (7-2). But even there, Justice Stephen Breyer’s majority opinion was (if I may) rather schizophrenic. One the one hand, the Court ruled that “when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior.” On the other hand, the Court “assumed that Heffernan’s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards.”
Thus while Garcetti v. Ceballos (2006) remains the main law in the area of government-employee speech, a little wind has been taken from its sails.
Abood Lives On
The central issue in Friedrichs v. California Teachers Association was whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. After oral arguments, it looked like Abood was headed for the dead-precedents dumpster. Ever since Harris v. Quinn (2014), the conservative bloc of the Court seemed to be gunning for Abood.
Justice consider the rhetorical question Justice Antonin Scalia posed to Michael Carvin, counsel for Petitions: “Is is it okay to force somebody to contribute to a cause that he does believe in?” The drift of his other questions and comments moved along that conceptual track.
But Fate intervened, Justice Scalia died, and that left the Court divided 4-4, which affirmed the ruling of the Ninth Circuit in favor of the unions. Much as Heffernan saved Garretti, Friedrichs saved Abood. The rehearing petition was also denied. (See also Town of Mocksville v. Hunter, below.)
Some Important Cases — Cert. Denied
Some big First Amendment issues came before the Court this Term, but alas, all were ducked and thus delegated to the dustbin of forgotten cases. Just consider the following areas of the law:
- Right of Publicity: “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” Despite the splits in the circuits and the confusion in the lower courts, the Justices denied the petition in Electronic Arts, Inc. v. Davis. → Paul M. Smith was lead counsel for the Petitioner.
- Deceptive & Misleading Ads: “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.” POM Wonderful, LLC v. FTC. → Tom Goldstein was lead counsel for the Petitioner.
- Student Speech: “Whether and to what extent public schools, consistent with the First Amendment, may discipline students for their off-campus speech.” Bell v. Itawamba County School Board. → Wilbur Colom was lead counsel for the Petitioner.
- Government Employee Speech: “Whether the First Amendment protects police officers who report misconduct in their ranks to a law enforcement agency for investigation.” Town of Mocksville v. Hunter. → Philip M. Van Hoy was lead counsel for the Petitioners.
- Occupational Speech: “Whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review.” Hines v. Alldredge. → Jeffrey Rowes was lead counsel for the Petitioner.
- Public Forum: “(1) Whether the Massachusetts Bay Transportation Authority (MBTA) created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same controversial subject matter as petitioners’ pro-Israel ad, and thus violated the First Amendment by rejecting petitioners’ ad based on its content; and (2) regardless of the nature of the forum, whether the MBTA’s rejection of petitioners’ advertisement based on an advertising guideline that prohibits ads considered by MBTA officials to be “demeaning and disparaging” was a viewpoint-based restriction of speech in violation of the First Amendment.” American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority. → Robert J. Muise was lead counsel for the Petitioners.
- Charitable Fund Solicitations: “Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.” Center for Competitive Politics v. Harris. → Allen Dickerson was lead counsel for the Petitioner.
- 4 Campaign Finance Cases:  “Whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.” Justice v. Houseman. → Paul Avelar was lead counsel for Petitioners.
-  Disclosure Requirements: “Does a state’s interest in “increas[ing] . . . information concerning those who support the candidates,” Buckley v. Valeo, permit it to condition a charity’s publication of a nonpartisan voter education guide, which lists all candidates equally and makes no endorsements, upon the immediate and public disclosure of the names and addresses of individuals making unrelated donations over the previous four years?” Delaware Strong Families v. Denn (Justice Thomas dissented from the denial of cert. and issued an opinion, and Justice Alito would have granted the petition. → Allen Dickerson was lead counsel for the Petitioner.
-  Whether Hawaii’s registration, recordkeeping, and and ongoing reporting requirements violate the First Amendment as interpreted in Citizens United v. FEC. Yamada v. Snipes. → James Bopp, Jr., was lead counsel for the Petitioners.
-  “Whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.” Miller v. Federal Election Commission. → Alan Morrison was lead counsel for the Petitioner.
Free Speech & College Campuses
- Caroline Wang, Surrendering Power: Duke Students Speak Out Against Free Speech, The Torch, June 28, 2016
- Eugene Volokh, N.Y. Senate passes bill banning funding for university student groups that “encourage” “hate speech,” The Volokh Conspiracy, June 27, 2016
- Alex Morey, Facing More Troubling Details and Public Outcry, Northern Colorado Vows to Reconsider Bias Response Team, The Torch, June 27, 2016
Four Forthcoming Books
- Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise (Harvard University Press (September 19, 2016)
Abstract: “In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy.”
“The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence―often understood as a triumph for the Left―was in fact a calculated bargain.”
“America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.”
- Milton Cantor, The First Amendment Under Fire: America’s Radicals, Congress, and the Courts (Transaction Publishers, January 31, 2017)
Abstract: “The First Amendment is perhaps the most important–and most debated–amendment in the US Constitution. It establishes freedom of speech, as well as that of religion, the press, peaceable assembly and the right to petition the government. But how has the interpretation of this amendment evolved? Milton Cantor explores America’s political response to the challenges of social unrest and how it shaped the meaning of the First Amendment throughout the twentieth century.”
“This multi-layered study of dissent in the United States from the early 1900s through the 1970s describes how Congress and the law dealt with anarchists, syndicalists, socialists, and militant labor groups, as well as communists and left-of-center liberals. Cantor describes these organizations’ practices, policies, and policy shifts against the troubled background of war and overseas affairs. The volume chronologically explores each new challenge–both events and legislation–for the First Amendment and how the public and branches of government reacted.”
“The meaning of the First Amendment was defined in the crucible of threats to national security. Some perceived threats were wartime events; the First World War instigated awareness of civil liberties, but in those times, security trumped liberty. In the peace that followed, efforts to curtail speech continued to prevail. Cantor analyzes the decades-long divisiveness regarding First Amendment decisions in the Supreme Court, coming down squarely in criticism of those who have argued for greater government control over speech.”
- Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, January 12, 2017)
- Pekka Hallberg & Janne Virkkunen, Freedom of Speech and Information in Global Perspective (Palgrave Macmillan, November 15, 2016)
Penn Jillette Narrates Rauch’s Kindly Inquisitors
→ Over at the Cato Institute they are offering a two-disc audio book of Jonathan Rauch’s Kindly Inquisitors: The New Attacks on Freedom of Thought
Notable Blog Post: Volokh on Hamilton
- Eugene Volokh, Alexander Hamilton, the truth, and freedom of the press, The Volokh Conspiracy, June 28, 2016 (“Alexander Hamilton is much in people’s minds these days. But here’s one thing few people know about him: Though he isn’t usually seen as a libertarian, Hamilton played a historic and immensely influential role in American free press law, just months before his fatal duel.”)
Forthcoming Scholarly Articles
- Christopher French, Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict, 90 S. Cal. L. Rev. Postscript 101 (2016)
- B. Jessie Hill, The First Amendment and the Politics of Reproductive Health Care, 50 Washington University Journal of Law and Policy (2016 forthcoming)
News Items, Op-eds, Editorials, & Blog Posts
- First Amendment Coalition Of Arizona Wants Back On Lawsuit Over Death Penalty, Associated Press, June 28, 2016
- Noah Feldman, Influence peddling gets First Amendment protection, Napa Valley Register, June 29, 2016
- Erik Wemple, Lawyer in anti-Trump suit: He ‘cowers’ behind First Amendment, Washington Post, June 28, 2016
- Melissa Bartick, Reclaim Our Domestic Tranquility: Putting The First Amendment Before the Second Amendment, Huffington Post, June 28, 2016
- Allen Mincey, Candidate claims billboard removal violated his First Amendment rights, Cleveland Daily Banner, June 28, 2016
- Martha Grevatt, State tramples First Amendment, protesters win in court, Workers’ World, June 28, 2016
- Derek Muller, Speech Equality’s Crushing Weight, Library of Law & Liberty, June 27, 2016
- Deborah Love, Why the First Amendment is the greatest threat to terrorism, Eagle Forum, June 27, 2016
- Joseph Russomanno, Trump A Risk To First Amendment Speech, Press Freedom, KJZZ, 91.5, June 27, 2016
- Eric Boehm, New York’s Latest Anti-Airbnb Effort Could Violate First Amendment, Reason, June 25, 2016
Can We Take a Joke? Documentary Coming to Theaters Soon
→ See Can We Take a Joke? Official Trailer here
Today in First Amendment History
→ The Smith Act is passed. This from Today in Civil Liberties History:
“Congress on this day passed the Smith Act, officially the Alien Registration Act of 1940, making it a crime to advocate the overthrow of the government. The law, significantly, criminalized advocacy and not specific actions related to the violence overthrow of the government.”
“The Supreme Court, in Dennis v. United States, decided on June 4, 1951, upheld the constitutionality of the Smith Act in a case involving the prosecution of the top leaders of the Communist Party. Civil libertarians regarded the Dennis decision as a a major blow to the First Amendment, because at trial the government introduced no evidence linking the defendants with any acts directed toward the violent overthrow of the government and instead relied entirely on ideas expressed by them.”
“The Court limited the scope of the Smith Act in Yates v. United States, on June 17, 1957, one of the famous “Red Monday” decisions that limited various anti-Communist measures. In Yates, the Court held that the actions of the defendants did not pose a “clear and present danger.” Yates essentially ended the government’s use of the Smith Act.”
Outlawed: “ . . . knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government . . . .”
The Court’s 2015-2016 First Amendment Docket
- April 26, 2016: Heffernan v. City of Paterson
- March 29, 2016: Friedrichs v. California Teachers Association, et al (affirmed by an equally divided Court in a per curiam opinion)
** 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)
- Heffernan v. City of Paterson (cert. petition, amicus brief) (see blog post here)
- Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)
Oral Arguments Schedule of Cases Already Argued
- January 11, 2016: Friedrichs v. California Teachers Association, et al. (transcript here)
- January 19, 2016: Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)
- Delaware Strong Families v. Denn
- Scholz v. Delp
- Herson v. City of Richmond
- Hodge v. Talkin
- POM Wonderful, LLC v. FTC
- Cressman v. Thompson
- Justice v. Hosemann
- Electronic Arts, Inc. v. Davis
- American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority
- Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
- Town of Mocksville v. Hunter
- Miller v. Federal Election Commission
- Sun-Times Media, LLC v. Dahlstrom
- Rubin v. Padilla
- Hines v. Alldredge
- Yamada v. Snipes
- Center for Competitive Politics v. Harris
- 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
- New Hampshire Right to Life v. Dep’t of Health and Human Services (cert. denied with Thomas & Scalia dissenting)
→ 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, #115: Wednesday, July 6, 2016
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