FAN 124 (First Amendment News) Ellen DeGeneres raises First Amendment defense in defamation case

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs? Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

 “It was all in good fun,” reported Elura Nanos, “until Ms. Pierce’s phone blew up with harassing calls and messages. And to make matters worse, she was on her way to a family funeral. Comedic timing really is everything.” In light of that, on “Ms. Pierce filed a lawsuit in Georgia Federal Court against  DeGeneres, alleging Invasion of Privacy, Misappropriation of Likeness, Defamation, and Intentional Infliction of Emotional Distress.”

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

The Plaintiff is being represented by Stacey Godfrey Evans.

See video clip, courtesy of LawNewz, here.

Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

unknown“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

“Circuit Judge Cheryle Gering entered an order dismissing the defendants on Aug. 24.”

“‘BPI’s decision to dismiss some of the other defendants does not release the primary targets of the litigation, nor does it have anything to do with the merits of our case,’ BPI attorney, Erik Connolly, of Chicago, said in a written statement. . . .”

“BPI sued ABC, its correspondents, federal officials and a former employee in September 2012 in Union County Circuit Court and will attempt to prove that a series of stories and broadcasts that began in early March 2012 defamed the company’s Lean Finely Textured Beef. . . .”

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley”

“The Anti-Defamation League is placing a representative in Silicon Valley to work on cyber hate and harassment issues,” writes Rosie Gray for BuzzFeed news.

unknown“The move comes after significant trolling, particularly on Twitter, of Jewish journalists and other public figures, amounting to a wave of anti-Semitic expression not seen in the American conversation for decades — and as tech companies struggle to reckon with their role in regulating abusive speech.”

“‘As a leading civil rights advocacy organization, ADL was early to recognize the burgeoning issue of cyberhate and how extremists were exploiting online platforms to spread antisemitism and target Jews as well as other minorities,’ said Brittan Heller, who will become the group’s first Director of Technology and Society, in a statement. ‘From its first report on these cyberhate more than 30 years ago to this year’s work tracking the harassment of journalists on social media, ADL has demonstrated its commitment to ensuring our online communities are a safe and just place for all.’ . . .”

Free Speech on College Campuses 

  1. Stephen Beale, Brown examines relationship of free speech to academic mission, New Boston Post, September 21, 2016
  2. Tyler Laferriere, Faculty free speech under siege, Evergreen, Sept. 20, 2016
  3. Graham Ambrose, At the country’s most elite — and liberal — colleges, some Trump supporters stay quiet, Washington Post, Sep. 20, 2016
  4. Free speech boards taken down at UW-Eau Claire, WEAU13News, Sept. 19, 2016
  5. Cliff Sims, College Democrats leader calls for UA to ‘disinvite’ controversial gay conservative speaker, YellowHammer, Sept. 19, 2016
  6. Catherine Rampell, The newest excuse for shutting down campus speech: ‘Security’, Washington Post, September 19, 2016
  7. Ryne Myers, Safe spaces disrupt the First Amendment, The Volante, September 19, 2016
  8. G.R. O’Brian, The Right Needs To Get Past Demanding Free Speech On Campus, The Federalist, September 19, 2016
  9. Tom Ciccota, CNN’s Sally Kohn: I’m Happy Free Speech Is Under Assault on Campuses, Breitbart News, Sept. 19, 2016
  10. April Kelly-Woessner, The fierce debate over free speech on American college campuses, Lancaster Online, September 18, 2016
  11. Adam Steinbaugh, In New York, Independent Investigation Upholds Pro-Palestine Groups’ First Amendment Rights, Yet Threats Persist, FIRE, September 16, 2016
  12. Amanda Christy Brown & Katherine Schulten, Trigger Warnings, Safe Spaces and Microaggressions: Discussing Questions of Freedom of Speech on Campus, New York Times, September 14, 2016
  13. The White Knights of the First Amendment, Ms., Sept. 14, 2016

Coming: Geof Stone’s big book on sex  & the Constitution 

51z9sx4shl-_sx327_bo1204203200_On March 21, 2017 the Liveright imprint (Norton) will release Professor Geoffrey Stone’s latest book titled Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (704 pp., 50 photos). A good dollop of it concerns free-speech struggles.

Abstract: Renowned constitutional scholar Geoffrey R. Stone traces the evolution of legal and moral codes that have attempted to legislate sexual behavior from the ancient world to America’s earliest days to today’s fractious political climate. Stone crafts a remarkable, even thrilling narrative in which he shows how agitators, moralists, legislators, and especially the justices of the Supreme Court have historically navigated issues as explosive and divisive as abortion, homosexuality, pornography, and contraception. Overturning a raft of contemporary shibboleths, Stone reveals that at the time the Constitution was adopted there were no laws against obscenity and no laws against abortion before the midpoint of pregnancy. A pageant of historical characters―including Voltaire, Thomas Jefferson, Anthony Comstock, Margaret Sanger, J. Edgar Hoover, Phyllis Schlafly, and Justice Anthony Kennedy―enlivens this landmark work, which dramatically reveals how our laws about sex, religion, and morality reflect the paradoxes and cultural schisms that have cleaved our nation from its founding.

Professor Geoffrey Stone

Professor Geoffrey Stone

“A superb examination of the history of how the law has regulated sexual behavior and sexual expression from the ancient world to today. Geoffrey Stone’s clear and engaging writing, as well as his thorough coverage, will make this book the definitive work on sex, religion, and the Constitution. This is a brilliant book that offers a balanced and nuanced treatment of controversial topics such as obscenity, abortion, and same sex marriage.”—Erwin Chemerinsky

“Few, if any, legal scholars possess the capacious intellect and encyclopedic command of constitutional law and American history to make us see in an entirely new light what is perhaps society’s most commonly discussed subject.  In devoting his unique talents to Sex and the Constitution, Geoffrey Stone has created a volume of lasting significance that quickly will become essential reading not only for law students and scholars but for all who want to better understand sweeping cultural transformations that continue to roil society.  Professor Stone provides layer upon layer of historical, jurisprudential, and social context to explain how we have arrived at this point, all of it impeccably researched, in what is an astonishing tour de force.” —Lee Bollinger

Jameel Jaffer

Jameel Jaffer

Jameel Jaffer on free speech in an era of new technologies 

“The First Amendment precedents that were decided in the 1960s and ’70s—we haven’t yet figured out how they apply or whether they have continuing relevance to the kinds of questions that are arising today,” Jameel Jaffer told reporters from the Columbia Daily Spectator. “New technology has . . . given rise to a whole set of new challenges to freedoms of speech and the freedom of the press, and I hope that the [Knight First Amendment Institute] will tackle those challenges.”

“I’m hoping that we will use . . . Columbia’s convening power to bring together communities that are sometimes wary of each other—technologists, former intelligence officials, civil libertarians, journalists—in the hope that bringing those communities together will spark new insights and maybe even give rise to solutions that nobody had considered before,” Jaffer said.

Online First Amendment library to be launched soon

unknown-1On November 14th the Foundation for Individual Rights in Education (FIRE) will hold a press conference in Washington, D.C. to announce a new project—the creation of an online First Amendment library, which will be free to all users. The first phase of the library will launch on the 14th, replete with thousands of links to cases, historical materials, secondary sources, and audio files. I am honored to serve as the library’s editor-in-chief. Among many other features, the online library will include :

  • A hyperlinked list of all First Amendment opinions handed down by the Supreme Court, with the text of cases hosted on FIRE’s own site,
  • An ever-growing list of historical and related secondary materials, and
  • Users will be able to browse cases by numerous and varied topical categories (e.g. commercial speech) and sub-categories (e.g, lawyer advertising), as well as Court eras (e.g., Warren Court, Burger Court, Rehnquist Court & Roberts Court).
Those on the Advisory Board are:

Forthcoming Books

  1. Nicole Moore, editor, Censorship and the Limits of the Literary: A Global View (Bloomsbury Academic, February 23, 2017)
  2. Mickey Huff & Andy Lee Roth, editors, Censored 2017 (Seven Stories Press, April 4, 2017)
  3. Michael Donnelly, Freedom of Speech and the Function of Rhetoric in the United States (Lexington Books, December 15, 2016)
  4. Robert L. Shibley, Twisting Title IX (Encounter Books, Sept. 27, 2016)
  5.  Pekka Hallberg & Janne Virkkunen, Freedom of Speech and Information in Global Perspective (Palsgrave Macmillan, March 9, 2017)
  6. Billy Hallowell, Fault Line: How a Seismic Shift in Culture Is Threatening Free Speech and Shaping the Next Generation (Frontline, March 7, 2017)
  7. Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, January 12, 2017)

Floyd Abrams, The Soul of the First Amendment: Why Freedom of Speech Matters  (Yale University Press, April 25, 2017)

Abstract: The right of Americans to voice their beliefs without government approval or oversight is protected under what may well be the most honored and least understood addendum to the US Constitution—the First Amendment. Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England. In this lively, powerful, and provocative work, the author addresses legal issues from the adoption of the Bill of Rights through recent cases such as Citizens United. He also examines the repeated conflicts between claims of free speech and those of national security occasioned by the publication of classified material such as was contained in the Pentagon Papers and was made public by WikiLeaks and Edward Snowden.

Forthcoming Scholarly Articles

  1. Andrew Tutt, Commoditized Speech, ‘Bargain Fairness,’ and the First Amendment, Brigham Young University Law Review (2016-17)
  2. Richard Loren Jolly, Think of the Children: Using IIED to Reformulate Disturbing Speech Restrictions, University of Michigan Journal of Law Reform (2016)
  3. Yolanda King, The Right-of-Publicity Challenges for Tattoo Copyrights, Nevada Law Journal (2016)

Video: First Amendment Salon # 10

Stephen Solomon, Nadine Strosen, Floyd Abrams & Akhil Amar

Stephen Solomon, Nadine Strosen, Floyd Abrams & Akhil Amar

On September 9th the Floyd Abrams Institute for Freedom of Expression at Yale Law School co-hosted the tenth First Amendment Salon. The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

The video is now available and can be found here.

 The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

News, Editorials, Op-Eds, & Blog Posts

  1. Tim Berners-Lee & Daniel Weitzner, Ted Cruz is wrong about how free speech is censored on the Internet, Washington Post, Sept. 20, 2016
  2. Fayetteville teacher suspended for flag lesson on 1st amendment,, Sept. 20, 2016
  3. Laurel Raymond, Trump blames bombings on ‘freedom of the press’, ThinkProgress, September 19, 2016
  4. Terry Pell, School discipline fight shows why mandatory union fees violate the First Amendment, Washington Examiner, September 19, 2016
  5. David Harsanyi, Hillary Clinton Would Rather Blame Free Speech Than Islam For Terrorism, The Federalist, Sept. 19, 2016
  6. Scott Shackford, Which Major Party Presidential Candidate Blamed Free Speech for Terrorism Today?,, Sept. 19, 2016
  7. Jay Parini, Cultural appropriation: Testing the limits of free speech, CNN, Sept. 18, 2016
  8. Sandra Canosa, 41.2% Of Americans Believe The First Amendment Protects Them From Being Fired For Social Media Recklessness, The Compliance & Ethics Blog, September 2016
  9. Don Hinkle, First Amendment rights are under attack, Washington Times, September 19, 2016
  10. Ari Rabin-Havt, What Would The First Amendment Look Like Under President Trump?, Right Wing Watch, September 19, 2016
  11. Alex Brinkhorst, Constitution Day to teach students about the First Amendment, Kentucky Kernel, September 18, 2016
  12. Jordan Freiman, Police union president thinks the First Amendment doesn’t apply to NFL players, Death&Taxes, September 18, 2016
  13. Jay Caruso, Donald Trump Continues His Crusade Against The First Amendment, The Red State, September 17, 2016
  14. Annika Hammerschlag, First Amendment lawyers: Lely can’t force students to stand during national anthem, Naples Daily News, September 15, 2016
  15. David French, Free Speech Is Killing Free Speech, National Review, Sept. 15, 2016
  16. Stephanie Francis Ward, Avvo has First Amendment right to publish lawyer listings, Chicago federal court rules, ABA Journal, September 14, 2016
  17. John Stossel, Why don’t presidential candidates understand First Amendment?, The Spectrum, September 7, 2016
Anthony Comstock (1884-1915)

Anthony Comstock (1884-1915)

This Day in First Amendment History (Today in Civil Liberties History)

1915 — Anthony Comstock Dies; Censorship Lives On

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

Pending Petitions*

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

First Amendment Related Cases

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

 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, #123When you think of free speech, think of “45” — New book by Stephen Solomon explains why

Next Scheduled FAN, #125: Wednesday, September 28, 2016

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1 Response

  1. Brett Bellmore says:

    Couric, I think, is in some jeopardy here; The editing was unquestionably deliberate and with the aim of creating a false impression. And the victims were not public persons.