FAN 116 (First Amendment News) Farber on Scalia & the Abortion Protest Cases

Professor Daniel Farber

Professor Daniel Farber

The current issue of the Minnesota Law Review Headnotes consists of a symposium on Justice Antonin Scalia. One of the contributors to that symposium is Professor Daniel Farber, whose contribution is entitled “Playing Favorites?Justice Scalia, Abortion Protests, and Judicial Impartiality.” His essay consists of an analysis of Justice Scalia’s views on four abortion protest cases and the First Amendment.

Here are a few excerpts from his introduction:

“[G]iven Scalia’s accusations of partiality in the abortion protest cases, a 2013 statistical study concluded that Scalia himself was far more likely to uphold the speech rights of conservative speakers than liberal ones, though the study has been subject to some methodological criticisms.”

“Taking a closer look at the abortion protest cases can shed light on these disputes over judicial bias in First Amendment cases. It can also shed light on two important aspects of Scalia’s work: his rhetorical style, which regularly featured scathing attacks on the motives or competence of other Justices; and his insistence that his own decision-making adhered to rigorous, objective methods of analysis.”

1199772_630x354“In reexamining the four abortion protest cases, my goal is not to decide whose views of the doctrinal issues were correct. Rather, it is to assess whether Justice Scalia or the majority stepped outside normal bounds in ways that might indicate bias. At the risk of eliminating suspense about the results of the inquiry, there seems to be more evidence of partiality on the part of Justice Scalia in these cases than on the part of his opponents.”

He concludes his essay by noting:

“In these cases involving abortion protesters, Justice Scalia accused the Court of ignoring well-established law in the interest of suppressing speakers with whom the majority disagreed. That was a serious accusation. It involved not only violation of the general judicial duty of impartiality and fairness toward all litigants, but also of the First Amendment’s own imperative of neutrality toward opposing viewpoints. A close examination of the relevant cases suggests little support for this accusation, although it is never possible to say with confidence that a case was completely unaffected by the biases or ideologies of the judges. . . . “

Headline: “Judge Rules Virginia Can’t Force Delegates to Back Donald Trump”

According to a story in the Wall Street Journal “Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.”

“U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates ‘a severe burden’ on First Amendment rights.”

“But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question. . . .”

Bopp Petitions Court in Judicial Elections Free Speech Case 

The case is Wolfson v. Colcannon. The issues in the case are:

  1. Whether the endorsement clause is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to endorsements of candidates that will not appear in the court for which election is sought; and
  2. Whether the campaigning prohibition is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to campaigning in support of ballot measures.

James Bopp is the counsel of record for the Petitioner.

Free Speech & College Campuses

  1. Greg Piper, ‘Tyranny’ of Brown University’s censorship culture is featured in new documentary, The College Fix, July 12, 2016
  2. Will Creeley, Civil Liberties Coalition Criticizes Proposed Student Privacy Model Legislation, The Torch, July 11, 2016
  3. Ben Kew, Chicago Professor Writes Guide on How to Protect Free Speech on Campus, Breitbart, July 11, 2016
  4. Brandon Jordan, City University of New York Responds to Boycott Israel Movement by Shutting Down Free Speech, Mint Press News, July 11, 2016
  5. Eliana Johnson, The Road to Yale’s Free-Speech Crisis, National Review, July 5, 2016

Job Opening for First Amendment Lawyer 

“FIRE’s Stand Up For Speech Litigation Project just marked its second anniversary, with 12 lawsuits filed so far. We are expanding our efforts to build on our undefeated in-court record of making colleges and universities reform their unconstitutional speech policies. Accordingly, we are looking to hire an associate attorney with some litigation experience who is committed to restoring First Amendment rights on public campuses. The most competitive candidates will understand the mechanics of civil litigation, be familiar with First Amendment law, be able to communicate effectively with students, be able to write persuasive prose on a short deadline, and have a track record of successfully collaborating with a wide range of colleagues to achieve concrete objectives.”

“The full job description can be found here. Candidates who are passionate about free speech are particularly encouraged to apply.”

Forthcoming Books

Gerald Butters, Jr., Banned in Kansas: Motion Picture Censorship, 1915-1966 (University of Missouri, October 25, 2016)

51iEFhtDgbL._SX327_BO1,204,203,200_Abstract:  If you caught a movie in Kansas through much of the past century, you’re likely to have seen a different version than did the rest of America. Theda Bara’s depictions of wicked sexuality were off-limits, and a film such as the 1932 Scarface showed far too much violence for decent folk—a threat to Protestant culture and to the morals of the general population.

In 1915, Kansas became one of only a handful of states to establish its own film censorship board. The Kansas board controlled screen content in the state for more than fifty years, yet little is known about its activities. This first book-length study of state film censorship examines the unique political, social, and economic factors that led to its implementation in Kansas, examining why censorship legislation was enacted, what the attitudes of Kansans were toward censorship, and why it lasted for half a century.

Cinema historian Gerald Butters places the Kansas Board of Review’s attempts to control screen content in the context of nationwide censorship efforts during the early part of the twentieth century. He tells how factors such as Progressivism, concern over child rearing, and a supportive press contributed to censorship, and he traces the board’s history from the problems posed by the emergence of “talkies” through changing sexual mores in the 1920s to challenges to its power in the 1950s.

In addition to revealing the fine points of film content deemed too sensitive for screening, Butters describes the daily operations of the board, illustrating the difficulties it encountered as it wrestled not only with constantly shifting definitions of morality but also with the vagaries of the political and legal systems. Stills from motion pictures illustrate the type of screen content the board attempted to censor.

            As Kansas faced the march of modernity, even state politicians began to criticize film censorship, and Butters tells how by the 1960s the board was fighting to remain relevant as film companies increasingly challenged its attempts to control screen content. Banned in Kansas weaves a fascinating tale of the enforcement of public morality, making it a definitive study for cinema scholars and an entertaining read for film buffs.

→ Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (NYU Press, February 14, 2017)

51AQRpD-3CL._SX331_BO1,204,203,200_Abstract: The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning.

As a legal matter, the Court’s conclusion is clearly correct, but its premises are murky, and they raise difficult questions about the possibilities and limitations of law and expression. Nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense, and sometimes do not even involve the transmission of articulable ideas. How, then, can they be treated as “speech” for constitutional purposes? What does the difficulty of that question suggest for First Amendment law and theory? And can law resolve such inquiries without relying on aesthetics, ethics, and philosophy?

Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.

Posner bio coming in September: William Domnarski, Richard Posner (Oxford University Press, Sept. 2, 2016)

New & Notable Blog Posts

Professor Ruthann Robson

Professor Ruthann Robson

“In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.’s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court’s 2015 Reed v. Town of Gilbert.”

Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that “we may do well to relax our guard so that ‘entirely reasonable’ laws imperiled by strict scrutiny can survive.”  Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.”

“The L.A. ordinances are directed at “advertising signs” on vehicles or attached to vehicles.  Signs on vehicles – – – painted or permanently affixed – – – are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe.  Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.”

“Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to “advertising” did not render the ordinances content-based. . . .” In her opinion, Judge Murguia declared:

The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.

New & Forthcoming Scholarly Articles

  1. Frank A. Pasquale III, First Amendment Freeze Play: Bennett’s Strategy for Entrenching Inequality, University of Pennsylvania Law Review Online  (2016)
  2. Leslie Kendrick, How Much Does Speech Matter? (Book Review of Speech Matters: On Lying, Morality, and the Law by Seana Valentine Shiffrin)

Case Notes from Harvard Law Review (2016):

  1. Free Speech Doctrine After Reed v. Town of Gilbert
  2. In re Tam
  3. Amarin Pharma, Inc. v. FDA
  4. Garcia v. Google, Inc.
  5. National Ass’n of Manufacturers v. SEC
  6. S.C. Code Ann. 11-35-3500 

News, Editorials, Op-eds, Book Reviews, & Blog Posts

  1. Mark Tushnet, Book Review: Timothy Garton Ash’s Free Speech — A Mini-Review Parts I and Part IIBalkanization 
  2. Justin Udo, Journalists, Police Get First Amendment Crash Course Ahead Of DNC,  CBS Philly, July 12, 2016
  3. Bill Turque, Md. congressional districts violate First Amendment, lawsuit says, Washington Post, July 12, 2016
  4. Tammi Rossman-Benjamin, Fighting discrimination and protecting the First Amendment on campus, not a zero sum game, The Hill, July 11, 2016
  5. Stuart Brotman, First Amendment rights often hit turbulence in cyberspace, Las Vegas Sun, July 9, 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. Wolfson v. Concannon
  2. Lee v. Tam
  3. Dart v.
  4. Pro-Football v. Blackhorse 
  5. 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 is on September 26, 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, #117: Wednesday, July 20, 2016

LAST SCHEDULED FAN POST, #115Profile: Jameel Jaffer to Head New Knight First Amendment Institute

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