FAN 122 (First Amendment News) Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)

There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –Justice Samuel Alito for the Court in Pleasant Grove City v. Summum  (2009)

Unknown-1It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:

Suppose that a State erected elec- tronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individu- als to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?

What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

UnknownAgainst that backdrop comes the cert. petition in Mech v. School Board of Palm Beach CountyThe issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.

The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”

Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:

  1. “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and 
  2. “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.

Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:

  1. “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
  2. “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”

Shawntoyia Bernard, representing the School Board, counters:

  1. “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker
  2.  “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
  3. “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”

 One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?

The case was distributed for Conference of September 26, 2016.

CJ Roberts  temporarily blocks subpoena over sex ads

This from Sam Hanane writing in the Associated Press: Yesterday Chief Justice John Roberts “temporarily blocked a congressional subpoena that seeks information on how the classified advertising website screens ads for possible sex trafficking.”

Chief Justice John Roberts

Chief Justice John Roberts

“The order came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.”

“A federal appeals court ruled 2-1 on Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate Permanent Subcommittee on Investigations by Friday. . . .”

See aslo John Bresnahan, Supreme Court gives temporary stay in Senate probe, Politico, September 6, 2016

Federal district court strikes down anti-robocall state law 

Late last July Federal District Judge J. Leon Holmes was called upon to decide the constitutionality of an Arkansas statute (Ark. Code Ann. 5-63-204) of an anti-robecall law concerning political speech. The case is Gresham v. Rutledge (E.D. Ark, July 27, 2016). The Arkansas law in question provides:

It is unlawful for any person to use a telephone for the purpose of offering any goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods of services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the call number. 

Judge J. Leon Holmes

Judge J. Leon Holmes

Plaintiff Victor Gresham is a political consultant involved with the management of Conquest Communications, which “engages in political communications, including communications through automated telephone calls, on behalf of clients. Gresham previously has performed such services for political candidates in Arkansas and plans to do so in the future. Gresham seeks to conduct automated telephone calls in the state, including surveys, messages concerning voting, express advocacy calls, and a variety of other calls made in connection with political campaigns. To engage in these activities, the plaintiffs use an automated dialing system and pre-recorded messages.”

“Having reviewed the briefs, heard arguments, and examined the evidence submitted,” Judge Holmes declared, “the Court holds that the statute at issue is a content-based regulation that does not survive strict scrutiny.”

Judge Holmes did stress, however, that “the plaintiffs have submitted to the Court a list of statutes, codes, and regulations that other states and the District of Columbia have implemented to regulate robocalls. Mechanisms used to temper the negative effects of robocalling include time-of-day restrictions, disconnection requirements, and prohibitions on calls to emergency lines. None of these restrictions and requirements impose a categorical ban on robocalls made in connection with political campaigns.”

Free Speech on Campus

  1. Alex Jones, DePaul launches free speech lecture series after banning conservatives, Prison Planet, September 7, 2016
  2. Jeremy Cappello Lee, Beyond free speech?, The Observer, September 7, 2016
  3. Tom Borelli, Purdue University Gives Students “Free Speech Training,” Liberty Alliance, September 6, 2016
  4. Thomas D. Williams, University of Colorado Bans Free Inquiry of Students Questioning Global Warming, Breitbart, September 6, 2016

Forthcoming Conference on Campus Speech

This November 17th and 18th, PEN America and the National Constitution Center in Philadelphia will host a program entitled Campus Speech: Alive and Well or Under Siege?

logoThe two-day event will event  will bring together a diverse group of stakeholders for moderated discussions on the increasingly contested interplay between free speech and issues of race, gender, politics and social justice on American campuses.  The symposium will build upon the findings of a forthcoming PEN America report that examines recent campus speech controversies in-depth, with the aim of shedding light on how best to advance inclusion and equality while guaranteeing intellectual and academic freedom.

The symposium is intended to bridge divide between leading student activists and thinkers, scholars and advocates of free speech. It will give participants in these controversies an opportunity not only to take stock of differing views, but also to begin exploring common ground.

Approximately 35 carefully selected student activists, legal scholars, free speech advocates, cultural critics, university administrators and professors will take part in the convening, beginning on Thursday afternoon November 17 at 4 PM and concluding on Friday November 8 at 5 PM.

Upcoming Conference on truth & lies . . . & the Constitution 

On April 14, 2017 (8:00 AM – 3:00 PM), the University of Colorado Law School’s Byron White Center for the Study of Constitutional Law will host the 2017 Ira C. Rothgerber Conference, which is titled “Truth, Lies, and the Constitution.” The event will explore a broad range of issues related to law and lies.

Participants include:

For more information, contact Professor Helen Norton:

Coming Sept. 9: Lecture on Pornography, Political Expression & Free Speech

This from Chanda Marlowe writing for the UNC Center for Media Law & Policy:

Pornography, Political Expression, and Free Speech: What’s at Stake in the Scholarly Research Today?

“On Friday, Sept. 9 at noon in the Halls of Fame Room in Carroll Hall, the UNC Center for Media Law and Policy will host an interdisciplinary lunch open to faculty and graduate students from across the UNC system.”

Professor Richard Cante

Professor Richard Cante

Richard Cante is Associate Professor of Media and Technology Studies in The Department of Communication at UNC-Chapel Hill. Cante’s research focuses largely on relations between sexuality and the media in the United States since the late 1960s, as well as on how to make sense of these connections–especially in LGBTQ cases.”

“Cante will discuss the rapidly expanding body of research on media pornography across and between scholarly disciplines, helping researchers think through a contemporary interactive mediascape that can make borders between the public and the private seem increasingly and intriguingly opaque. This research has significant implications for human development, public health, law and cultural policy, amongst a variety of other areas. It also has significant implications for how society will more generally grapple, in the future, with media technology’s roles in our lives.”

Call for Papers: “Dark Money and Related Issues”

The University of Arkansas at Little Rock Law Review is seeking papers for its 2017 Symposium, which is titled “Dark Money and Related Issues: New Factors in the Debate on Judicial Appointment versus Election.” The symposium will be held on February 16th and 17th, 2017.

The deadline for submissions of article proposals is October 7, 2016. [ht: Steven D. Schwinn]

For more information, contact the Symposium Editor, Michael Hemme, at:

The young Marty Garbus

The young Garbus

Garbus Looks Back on Lenny Bruce Defense 

Martin Garbus, who with Ephraim London represented the comedian Lenny Bruce in his lengthy New York trial, recently looked back on those days in a Law and Disorder interview.

Among other places, Mr. Garbus wrote about his representation of Bruce in his book Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way (1998).

See also Collins & Skover: The Trials of Lenny Bruce: The Fall & Rise of an American Icon

Job Opening: FIRE seeks Executive Assistant to President

By  September 6, 2016

FIRE is seeking an energetic, entrepreneurial individual to join our Washington, D.C., team as the Executive Assistant to the President.

A successful candidate for this position will have strong writing skills and the ability to take charge of a wide range of responsibilities, including spearheading important, specialized projects and presidential initiatives; working with the Vice President of Finance and Development to increase the fundraising capabilities of the department; and maintaining the President’s schedule. Importantly, the Executive Assistant must be able to think creatively and aggressively about ways to make the President more efficient and effective in executing his duties and responsibilities.

This position will be charged with increasing both the President’s and the organization’s messaging reach by arranging networking opportunities and media appearances, as well as working closely with the President’s Research Assistant to proofread and create written content for the FIRE blog and other websites.

This position requires willingness to work collaboratively on a range of writing projects, the ability to meet deadlines on short notice, and strong organizational skills in order to manage multiple projects at a given time.

A successful candidate will also have a good work ethic, be a self-starter, and have the ability to work independently. Most importantly, the candidate must have an eye for detail and strive for perfection when executing job functions.

Other qualifications include:

  • knowledge of FIRE’s mission and a willingness to advocate for that mission;
  • exceptional verbal and written communication skills;
  • an ability to exercise sound judgment;
  • organizational, planning, and time management skills;
  • superior memory and attention to detail;
  • an ability to manage challenging and fast-paced situations;
  • strong copy editing skills;
  • superior computer and internet proficiency, including the ability to use Microsoft Office and Google applications; and
  • a four-year undergraduate degree from an accredited college or university. Graduate certificates or degrees are not required, but will be viewed favorably.

Previous work experience is strongly preferred. Ideally, candidates can commit a minimum of two years to this position.

New & Notable Blog Post

New & Forthcoming Scholarly Articles

  1. Robert Corn-Revere, Hate Speech Laws: Ratifying the Assassin’s Veto, Cato Policy Analysis (2016)
  2. Michael Gilbert & Emily Reeder, Aggregate Corruption, Kentucky Law Journal (forthcoming 2016)
  3. Daniel P. Tokaji, Voting is Association, Ohio State Public Law Working Paper (2016)

Robert Post: The Disrupter 

Gilad Edelman, The Supreme Court’s First Amendment problem, Yale Alumni Magazine, Sept./Oct. 2016

Excerpt: “The Supreme Court, says Robert Post, is having trouble. Just not in the way you might think.”

“He’s not talking about the 4–4 court stalemate, or even the standoff in Congress that caused it. Post ’77JD, the dean of Yale Law School, believes the justices have lost their way on free speech. They’re caught between two conflicting visions. In one, the First Amendment applies in the same way, all the time, regardless of context: speech is speech, period. In the other, speech should be treated differently in different contexts. It’s not just a matter of politics, he says. ‘There’s a genuine uncertainty about how to think about the regulation of speech that afflicts both the right and the left,’ Post told me recently. ‘It’s not a liberal or conservative mess. It’s a conceptual mess.'”

Dean Robert Post

Dean Robert Post

“Recent media coverage of free speech has focused on fights on college campuses, including Yale’s, over racism and political correctness. But in the courts—where our legal rights to free speech are won and lost—that’s not where the action is. The biggest First Amendment issue right now isn’t hate speech or political censorship; it’s speech in the business world.”

“. . . . Like any academic, Post has his intellectual opponents. Martin Redish, a law professor at Northwestern University, has accused him of ignoring the constitutional importance of individual autonomy.”

“[Owen] Fiss, Post’s friend and former mentor, has sparred with him from the opposite direction, arguing that his theory of public discourse gives the government too little power to regulate speech in ways that promote equality. Even those who agree with his approach, like Lessig, note that Post’s work leaves important practical questions unanswered. How, for instance, are judges supposed to decide what counts as public discourse and what doesn’t?”

“Post readily admits that his abstract explorations of constitutional values rarely translate into concrete legal rules. Early in his career, he found the pressure to definitively resolve legal disputes ‘totally paralyzing.’ He decided to write only as much as he felt sure was correct, even if that meant leaving the fine details to be worked out by others.”

“. . . Post doesn’t say so, but he may be playing a longer game. Many of his students go on to clerk for federal judges; some will eventually be the judges. One or two may even make it to the Supreme Court. As a teacher, Post has a chance to shape the way future generations of jurists understand the law.

“‘I’m trying to disrupt the intuitions of students that speech is just speech,’ Post says.”

“‘I’m not going to change a judge’s decision, but I hope to give my students a way to think of these issues in a way that is rational.'”

New Book

News, Editorials, Op-eds & Blog Posts


(credit: Shawn Patrick Ouellette/Portland Press Herald) (see item 4 below)

(credit: Shawn Patrick Ouellette/Portland Press Herald) (see item 4)

  1. Callum Borchers, Lawyer hired by Trump and Ailes to threaten the media once defended it, Washington Post, September 7, 2016
  2. Editorial, Trump imperiling 1st Amendment rights, Press Republican, September 7, 2016
  3. Steven Simpson, Overturning Citizens United would be a disaster for free speech, The Hill, September 6, 2016
  4. Peter McGuire, Scathing LePage mural tests Portland’s stance on free speech, Portland Press Herald, September 6, 2016
  5. Lici Beveridge, Judge: Fair trial, free speech both protected, Hattiesburg American, September 6, 2016
  6. Russell Hubbard, Are you free to speak? Why the First Amendment probably won’t be much help in the workplace, Omaha World Herald, September 6, 2016
  7. Alex Morey, Are Columbia’s Speech Codes’ Days Numbered?, FIRE, September 5, 2016
  8. Editorial, Who will stand up for the First Amendment?, Salem News, September 4, 2016
  9. Steven D. Schwinn, Ninth Circuit Says No Free Speech for Off-Campus Sexual Harassment, Constitutional Law Prof Blog, September 2, 2016
  10. Mirah Riben, Buyer Beware! HOA’s Deny Your First Amendment Rights, Huffington Post, September 1, 2016
  11. Thor Benson, Beyond the First Amendment: You’re probably confused about free speech, Salon, August 31, 2016
  12. Dustin Waters, Despite First Amendment challenge, federal hearing for Dylann Roof to remain closed, Charleston City Paper, August 31, 2016
  13. Nahila Bonfiglio, Hate speech should not be protected under the First Amendment, The Daily Texan, August 30, 2016


Prof. Eugene Volokh

Prof. Eugene Volokh

The Court’s 2016-2017 First Amendment Free Expression Docket

Pending Petitions*

  1. NCAA v. O’Bannon
  2. Mech v. School Board of Palm Beach County
  3. Bondi v. Dana’s Railroad Supply
  4. Flytenow v. Federal Aviation Administration
  5. Armstrong v. Thompson
  6. Williams v. Coalition for Secular Government 
  7. Wolfson v. Concannon
  8. Lee v. Tam
  9. Dart v.
  10. Pro-Football v. Blackhorse 
  11. Packingham v. North Carolina

→ 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.

Last Scheduled FAN, #121New York law to combat Citizens United is “constitutionally unsound” says NYCLU

Next Scheduled FAN, #123: Wednesday, September 14, 2016

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