FAN 115 (First Amendment News) Profile: Jameel Jaffer to Head New Knight First Amendment Institute

Jameel Jaffer

Jameel Jaffer

“Columbia University President Lee C. Bollinger announced his appointment of Jameel Jaffer, deputy legal director at the ACLU, as founding director of the Knight First Amendment Institute at Columbia University. Last [May], Columbia and the John S. and James L. Knight Foundation announced the creation of the new institute which will workthrough litigation, research and public advocacyto preserve and expand the freedoms of expression and the press in the digital age.”

Columbia News also reported that “since he joined the staff of the ACLU in 2002, Jaffer has litigated some of the most significant post-9/11 cases relating to national security and civil liberties, among them: constitutional challenges to gag orders imposed under the USA Patriot Act, surveillance conducted by the National Security Agency, the viewpoint-based denial of visas to foreign scholars, and the sealing of judicial opinions issued by the Foreign Intelligence Surveillance Court. He has argued cases at all levels of the federal court system, including in the U.S. Supreme Court, and has testified before Congress about a variety of topics relating to national security and civil liberties. Jaffer is also one of the nation’s leading Freedom of Information Act attorneys, having litigated landmark cases that resulted in the publication of crucial documents about the U.S. government’s counter-terrorism policies.”

Select Litigation 

  • Jaffer represented the Respondents in Clapper v. Amnesty International USA (2013) (briefs here & here)
  • In 2004, “he successfully litigated a Freedom of Information challenge that forced the administration of former president George W. Bush to release the ‘torture memos,’ which authorized the use of brutal interrogation and torture techniques against detainees during the War on Terror.”
  • ACLU v. Holder (4th Cir., 2010) (Appellants’ brief) (“The False Claims Act requires the sealing of fundamental court documents alleging matters of vital public importance, sometimes for many years. The statute penalizes relators for discussing facts that are true and of public interest. Approximately one thousand cases remain under seal, and serious allegations that the federal government has been defrauded of billions of dollars continue to be hidden from the public eye. Thus has a venerable statute enacted to expose fraud against the government been employed as a means of suppressing public debate about critical national issues, in plain contravention of the First Amendment.”)
  • ACLU v. NSA, 467 F.3d 590 (2006)

Select Publications, Congressional Testimony & Interviews

 Jameel Jaffer was born in Kingston, Ontario. He is a graduate of Williams College and received his law degree from Harvard Law School (he was an editor on the Harvard Law Review). Jaffer clerked for Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and for Beverley McLachlin, Chief Justice of Canada.

ACLU Contests Constitutionality of Computer Fraud & Abuse Act

This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. — ACLU Complaint 

The American Civil Liberties Union filed a lawsuit in federal court challenging the constitutionality of an anti-hacking law. The group argues that the law (the Computer Fraud and Abuse Act) inhibits academics and others from gathering data to study whether online algorithms might be discriminatory. The ACLU claims the law v violates First Amendment freedoms.

aclu_logo

The ACLU complaint “challenges the constitutionality of a provision of the Computer Fraud and Abuse Act, a federal statute that prohibits and chills academics, researchers, and journalists from testing for discrimination on the internet. This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. Without online audit testing, policymakers and the American public will have no way to ensure that the civil rights laws continue to protect individuals from discrimination in the twenty-first century. . .”

“The Plaintiffs’ research and testing activities, which include posing as online users of different races and recording the information they receive, constitute speech and expressive activity that is protected by the First Amendment, and that is prohibited by the Challenged Provision. The overbroad and indeterminate nature of the Challenged Provision prohibits and chills a range of speech and expressive activity protected by the First Amendment, because it prevents Plaintiffs and other individuals from conducting robust research on issues of public concern when websites choose to proscribe such activity.”

→ ACLU Attorneys for Plaintiffs: Esha Bhandari, Rachel Goodman, Arthur B. Spitzer & Scott Michelman

 David McCabe, ACLU sues feds over anti-hacking law, The Hill, June 29, 2016

7th Circuit Holds City Ban on Bus Ads Inapplicable to Women’s Health Care Ad

The case is Women’s Health Link, Inc. v. Fort Wayne Public Transportation Corp.(7th Cir., June 22, 2016).

Facts: “The defendant, colloquially referred to as ‘Citilink, is a municipal corporation that provides bus service in Fort Wayne, Indiana, and also has regulatory authority over advertisements both inside the buses and on the buses’ exterior. The plaintiff is a nonprofit corporation (which we’ll call Health Link for the sake of brevity) that provides health care for women in Fort Wayne. It wanted to post the following advertisement in Citilink’s buses”:

Screen Shot 2016-07-06 at 12.11.12 AM

“Citilink refused to allow the ad to be posted. It forbids public service ads that ‘express or advocate opinions or po‐ sitions upon political, religious, or moral issues.’ Although the proposed ad did not express or advocate any such opin‐ ion or position, Citilink discovered that Health Link, although it provides a variety of uncontroversial health services, mainly in the form of referrals to providers of health care, is pro‐life and so suggests (though not in the ad) that women with unplanned or crisis pregnancies consider health care and related services that provide alternatives to abortion, such as adoption counseling. Since abortion is gen‐ erally regarded as a moral issue, Citilink concluded that Health Link’s proposed ad was ineligible to appear in or on Citilink buses, even though the ad itself—as any reader of this opinion can see—contains not the faintest reference to abortion or its alternatives.”

Judge Richard Posner

Judge Richard Posner

Writing for the court, Judge Richard Posner declared: ” We know that Health Link is pro‐life, but nothing in the ad reveals that, and Citilink’s official ‘Policy Governing All Advertising in or upon Citilink Vehicles and Facilities’ is limited to material forbidden to be contained in ads in or on its buses. Prohibited is an advertisement that “contains profane language,’ or ‘contains an image or description of violence,’ or constitutes ‘material that incites, describes, depicts, or represents sexual activities or images or description of human sexuality or anatomy in a way that the average adult, applying contemporary community standards, would find appeals to the prurient interest,’ or is libelous, or encourages passengers on Citilink’s buses to disregard transit safety, and so on. . . .”

“Nothing in Health Link’s proposed ad violates any of [Citilink’s] restrictions. Probably nothing in its website either, but the website’s content is irrelevant because, to repeat, Citilink’s policy does not extend to websites. . . .”

“What is important is not what other advertisers are permitted to do but that Citilink’s ad censorship policy is limited to ad content, and the content of Health Link’s proposed ad lacks the faintest suggestion of a political, religious, or moral aim or agenda. . . . Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it ‘must respect the lawful boundaries it has itself set.’ Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829 (1995). Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech.”

Posner Comments on Supreme Court’s Pubic Forum doctrine: After describing four types of public fora and the First Amendment law relating to them, Judge Posner declared: “it is rather difficult to see what work ‘forum analysis’ in general does. . . . The constant, however, is that regulation is not to be used as a weapon to stifle speech just because it is unpopular. And that means that we don’t have to decide which type of forum makes the best fit with the display surfaces in and on Citilink’s buses; for its refusal to allow Health Link’s ad to be displayed is an unjustifiable, because arbitrary and discriminatory, restriction of free speech.” (emphasis added)

2016 State of the First Amendment Survey Released

This year’s State of the First Amendment national survey (SOFA), was conducted by Newseum Institute’s First Amendment Center  in partnership with USA Today.

Some of the Survey’s key findings were:

  • “When asked to name the five specific freedoms in the First Amendment, 54% of Americans named freedom of speech, followed by 17% who said freedom of religion, 11% mentioned freedom of the press, 12% mentioned the right to assemble, and 2% named the right to petition. Thirty‐nine percent of Americans could not name any of the rights guaranteed by the First Amendment.”
  • “Fourteen percent of those with a college degree said the First Amendment goes too far in the rights it guarantees. Twenty‐seven percent of those without a college degree said it goes too far.”
  • “When given the choice between “protecting people’s ability to say what they want” or “protecting people from hearing things that offend them,” the vast majority of Americans (86%) stated that they believe protecting speech is more important. One‐tenth of respondents (10%) stated that protecting people from being offended is more important.”

Here are some additional highlights as offered by Gene Policinski of the Newseum Institute:

  • “When it comes to college campuses – where the impact of negative speech on social media really hits home – support even for speech that offends still stands at 57 percent.”
  • “Only when it comes to high school students does free speech come up short of a majority: Just 35 percent say it’s OK for those students to offend others.”

Past & Present: When Trump Sues for Defamation 

51k1uxCN6CL._SX333_BO1,204,203,200_Back in 2005 Timothy O’Brien published TrumpNation: The Art of Being the DonaldMr. Trump took exception to O’Brien’s evaluation of his net worth (the range was from $150 million to $6 billion — all short of Mr. Trump’s allegation of $10 billion).  “When the net worth confusion appeared in my book,” O’Brien wrote in 2015, Trump alleged “that low-balling his riches had damaged his reputation.”

The result: a $5 billion defamation lawsuit, which was dismissed by a New Jersey Superior Court judge.

The case, Trump v. O’Brien (2011), was appealed to the Appellate Division of the Superior Court of New Jersey.

Mr. Trump was represented by Karen A. Confoy while Mr. O’Brien was represented by Andrew J. Ceresney.

The court, in an opinion by Judge Edith K. Payne, ruled that there was “no triable issue as to the existence of actual malice . . . , and for that reason, affirm summary judgment for O’Brien. Absent actual malice on his part, respondeat superior liability cannot arise. Thus we find that summary judgment was also properly granted to the publishing defendants.”

Last month Mr. O’Brien republished Trump Nation, replete with a new introduction.

Related Defamation Cases & Stories

(credit: New York Magazine)

(credit: New York Magazine)

  1. Eric Hananoki, Libel Laws, Threats, Nasty Insults: A Guide To Trump’s War Against The Media, Media Matters, May 23, 2016
  2. Rachel Stockman, That Time Donald Trump Threatened to Sue The Onion Over ‘Defamatory’ Story, LawNewz, May 16, 2016
  3. FAN 99.2: Trump on Libel Law & Freedom of the Press (Feb. 27, 2016)
  4. Tim Hains, Cruz Calls Trump’s Bluff: Please Sue Me For Defamation, “I Will Depose You Myself,” Real Clear Politics, Feb. 17, 2016
  5. Rachel Stockman, First Amendment Expert: Trump’s Defamation Case Against Cruz ‘Ridiculous, Absurd, Laughable’, LawNewz, Feb. 17, 2016
  6. Glenn Minnis, Univision, Donald Trump Settle $500M Defamation Suit, Latin Post, Feb. 11, 2016
  7. Chris Cillizza, Donald Trump’s amazing ‘cease and desist’ letter, annotated, Washington Post, Sept.22, 2015
  8. Jeremy Diamond, Donald Trump threatens Club for Growth with lawsuit after attack ads, CNN, Sept. 22, 2015
  9. Eriq Gardner, Donald Trump Withdraws Bill Maher Lawsuit, Hollywood Reporter, April 3, 2013
  10. Editors, The Lawsuits of Donald Trump, The Atlantic, March 20, 2013

Free Speech & College Campuses

In a [recent] debate titled “Academic Freedom, Safe Spaces, Dissent, and Dignity,” faculty or administrators from Yale, Wesleyan, Mizzou, and the University of Chicago discussed last semester’s student protests and their intersection with free speech. They shared the stage at the Aspen Ideas Festival, co-hosted by the Aspen Institute and The Atlantic, with Jonathan Greenblatt of the Anti-Defamation League; Kirsten Powers, author of The Silencing: How the Left Is Killing Free Speech; and Greg Lukianoff, who leads the Foundation for Individual Rights in Education.  (See Conor Friedersdorf article below)

  1. Editorial, UNC’s weak-kneed commitment to free speech, Denver Post, July 5, 2016
  2. Kay Norton, Reports mischaracterize UNC’s commitment to free speech, academic freedom, The Tribune, July 2, 2016
  3. Joseph Cohn, FIRE Urges Changes to Student Privacy Draft Model Legislation, The Torch, July 1, 2016
  4. Conor Friedersdorf, Should Any Ideas Be ‘Off the Table’ in Campus Debates?, The Atlantic, June 30, 2016
  5. Ron S., North Carolina State University Sued Over Alleged Violation Of Free-Speech Rights, The University Herald, June 30, 2016
  6. Charles Lipson, The Death of Campus Free Speech — and How to Revive It, Real Clear Politics, June 28, 2016
  7. Jarrett Carter, Political correctness vs. free speech on campus, EducationDive, June 28, 2016
  8. Abby Ellin, Studies in the First Amendment, Playing Out on Campus, New York Times, June 22, 2016

Lenny Bruce Returns (Yet Again!)

There isn’t a comic who has worked since Lenny who doesn’t owe him a dedebt of gratitude. Every time someone swears on stage or runs counter to prevailing thoughts of the time, it is because Lenny kicked the door open. (And Mr. Carlin made sure it stayed open.) — Lewis Black

51hERRS0gLL._SX331_BO1,204,203,200_Next month DaCapo Press will rerelease Lenny Bruce’s How to Talk Dirty and Influence People: An AutobiographyThe book contains a new preface by comedian Lewis Black and a new foreword by Howard Reich of the Chicago Tribune.

Publisher’s Abstract: During the course of a career that began in the late 1940s, Lenny Bruce challenged the sanctity of organized religion and other societal and political conventions and widened the boundaries of free speech. Critic Ralph Gleason said, “So many taboos have been lifted and so many comics have rushed through the doors Lenny opened. He utterly changed the world of comedy.” He died in 1966 at the age of 40. His influence on the worlds of comedy, jazz, and satire is incalculable, and How to Talk Dirty and Influence People–now republished to coincide with the 50th anniversary of Lenny Bruce’s death–remains a brilliant existential account of his life and the forces that made him the most important and controversial entertainer in history.

Brief in Opposition filed Backpage.com Case 

The fight goes on in Dart v. Backpage.com, the case of the irate sheriff who wanted to eliminate online classified advertising of “adult” or “escort” services. When Sheriff Thomas Dart lost in the Seventh Circuit (opinion by Judge Posner here), his lawyers filed a cert petition in the United States Supreme Court.

Enter Robert Corn-Revere (Ronald London, Lisa Zycherman, James Grant, & Ambika Doran) on behalf of Backpage.com.  They recently filed their brief in opposition. The two issues in the case are:

Robert Corn-Revere

Robert Corn-Revere

  1. Whether a public official is exercising any rights protected by the First Amendment when he uses the authority of his office to threaten credit card companies with adverse govern- mental action unless they immediately cease doing business with a website that publishes constitutionally-protected speech?

  2. Whether an informal prior restraint, as prohibited by this Court’s holding in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), requires a plaintiff to prove a causal connection between the public official’s threat of adverse action and the immediate termination of service in response to the official communication?

Counsel for Backpage.com offer two main arguments for denying cert.:

  1. The Seventh Circuit Applied Established Law in Holding the First Amendment Does Not Permit or Protect Threats by Public Officials, and
  2. The Seventh Circuit Properly Granted Injunctive Relied Under Established First Amendment Principles without Shifting the Burden of Proof to the Plaintiff

Forthcoming Book

Prof. Christopher Robertson

Prof. Christopher Robertson

New & Forthcoming Scholarly Articles 

  1. Christopher Robertson, A Trojan Horse? How Expansion of the First Amendment Threatens Much More than the Regulation of Off-Label Drugs, Ohio State Law Journal (forthcoming 2017)
  2. Christopher Robertson, D. Alex Winkelman, Kelly Bergstrand, & Darren Modzelewski, The Appearance and The Reality of Quid Pro Quo Corruption: An Empirical Investigation, Journal of Legal Analysis (2016)

News, Editorials, Op-Eds, Blog Posts

  1. Fernando Alfonso, III, Flag-Burning Illinois Man Has Flag-Desecration Charges Dropped, Forbes, July 5, 2016
  2. Editorial, Governor defends free speech, Providence Journal, July 5, 2016
  3. Marita Noon, Climate Change Activists Clamp Down on Free Speech and Scientific Inquiry, Breitbart, July 5, 2016
  4. Pat Rice, The Orlando shooting and First Amendment obligations, Dayton Beach News, July 2, 2016
  5. Sam Gustin, How ExxonMobil and Airbnb Are Using the First Amendment to Fight Regulation, Motherboard, July 1, 2016
  6. Robert Fantina, The First Amendment, BDS and Third-Party Candidates, Counter Punch, July 1, 2016
  7. Editorial, Democrats now oppose the First Amendment, New York Post, June 30, 2016
  8. Erica Goldberg, Reflections on My Future as a Professor and the Future of the First Amendment, In a Crowded Theater, June 30, 2016

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. Backpage.com
  3. Pro-Football v. Blackhorse 
  4. Packingham v. North Carolina

Review Denied

  1. Delaware Strong Families v. Denn 
  2. Scholz v. Delp
  3. Herson v. City of Richmond
  4. Hodge v. Talkin
  5. POM Wonderful, LLC v. FTC
  6. Cressman v. Thompson
  7. Justice v. Hosemann 
  8. Electronic Arts, Inc. v. Davis
  9. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  10. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  11. Town of Mocksville v. Hunter
  12. Miller v. Federal Election Commission
  13. Sun-Times Media, LLC v. Dahlstrom
  14. Rubin v. Padilla
  15. Hines v. Alldredge
  16. Yamada v. Snipes
  17. Center for Competitive Politics v. Harris
  18. 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, was 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, #116: Wednesday, July 13, 2016

LAST SCHEDULED FAN POST, #1142015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied

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