FAN 125 (First Amendment News) Forthcoming book spotlights First Amendment freedom & LGBT equality

It comes out this March: The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, 320 pp.). The author is Carlos A. Ball, the Distinguished Professor of Law and Judge Frederick Lacey Scholar at the Rutgers (Newark) Law School.

Professor Ball is a prolific writer; his books include: Same-Sex Marriage and Children: A Tale of History, Social Science, and Law (2014); The Right to be Parents: LGBT Families and the Transformation of Parenthood (2012); From the Closet to the Courtroom: Five LGBT Rights Cases That Have Changed Our Nation (2010); and The Morality of Gay Rights: An Exploration in Political Philosophy (2003) and he is a co-editor of Cases and Materials on Sexual Orientation and the Law (2014).

Professor Carlos Ball

Professor Carlos Ball

In late March of next year, Professor Ball will turn his attention to the intersection of First Amendment freedom and LGBT equality. Here is the abstract of his forthcoming book:

“Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.”

“Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.”

“Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.”

Headline: “Pharmacy Argues There’s A First Amendment Right To Secretly Sell Execution Drugs”

Writing in BuzzFeed, Chris McDaniel reports that a “pharmacy whose drugs have been used in 16 Missouri executions is arguing that its actions are political speech protected by the First Amendment to the Constitution, and that its identity should remain secret.Death row inmates in Mississippi subpoenaed information from the Missouri Department of Corrections — including about the drugs and supplier — months ago. Missouri Attorney General Chris Koster has attempted to have the subpoena quashed, but so far has been unsuccessful. . . .”

A picture of Texas’ supply of pentobarbital. (Via court filing)

Picture of Texas’ supply of pentobarbital. (via court filing)

“In the past two weeks, the supplier has spoken up for the first time, under the pseudonym ‘M7.’ In a motion filed late Friday night, M7 said its drug sales are political speech. . . .”

“Missouri has paid M7 more than $125,000, all in cash, for execution drugs, according to documents obtained by BuzzFeed News. The amount they are paid per execution — $7,178.88 for two vials of pentobarbital — is well above market value, and experts have expressed concern that the cash deals could violate federal tax law.”

“‘The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights,’ the pharmacy’s attorneys wrote in Friday’s court filing.”

“Selling execution drugs ‘is an expression of political views, no different than signing a referendum petition or selling a t-shirt.'”

Headline: “Court rules 3D printing not protected under First Amendment”

Greg Camp, writing in, notes that the “Fifth Circuit Court of Appeals has ruled that designs of firearms to be used on 3D printers are not protected by the free speech provisions of the First Amendment.  The court, siding with the State Department, found that such designs could constitute an export, given the lack of borders on the Internet, and as such would pose a danger to national security.”

Defense Distributed v. United States Department of State (5th Cir., Sept. 20, 2016) (District Court opinion, August 4, 2015 — here)

College Campuses & Free Speech

  1. Brinley Lowe, First Amendment Day panel addresses use of trigger warnings, Daily Tarhell, Sept. 28, 2016
  2. Alex Morey, Milo Yiannopoulos Tour Highlights Dangers of Security Fee Censorship, FIRE, Sept. 27, 2016
  3. Aaron Cebone, Brockport ensures free speech on campusThe Stylus, Sept. 27, 2016
  4. Rick Ruggles, Free-speech experts discuss safe spaces, trigger warnings during Creighton University forum, World Herald, Sept. 27, 2016
  5. Robert Shibley, U. of Tennessee Ends Glenn Reynolds Investigation, Cites First Amendment, FIRE, Sept. 27, 2016
  6. Brian Bensimon, Speech code overrules U.S. Constitution, Arkansas Tech tells libertarian students. The College Fix, Sept. 27, 2016
  7. Safe Spaces and Free Speech on Campus, American University, College of Arts & Sceinecs, Sept. 26, 2016
  8. Joseph Zeballos-Roig, Free speech at FSU shown with Milo Yiannopoulus visit, Black Lives Matter protest, FSU News, Sept. 25, 2016
  9. David Palumbo-Liu, New attack on free speech: Pro-Israel groups wage war on campus freedom, Salon, Sept. 24, 2016

Floyd Abrams delivers annual Soles lecture

(credit: Sarah Gibson)

Floyd Abrams (credit: Sarah Gibson)

“Hate speech is protected under the First Amendment. According to Floyd Abrams, an accomplished First Amendment attorney, the United States is one of the only countries where this is true,” writes Sarah Gibson in The Review.   

“Abrams delivered the 6th annual James R. Soles lecture at the university on Thursday. In his speech, he recounted not only the history of the First Amendment, but legal cases in which the First Amendment was challenged or used as a defense.”

“Abrams’s speech on the history of the First Amendment and the Bill of Rights was intentional given the platform — the James R. Soles lecture is typically held as close to Sept. 17 as possible, to commemorate the signing of the U.S. Constitution in 1787. . . .”

“‘The ultimate First Amendment value is the avoidance of government censorship over speech,” Abrams said. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs.'”

Banned Books Week: September 25-October 1, 2016


Banned Books Week is an annual event celebrating the freedom to read. Typically held during the last week of September, it highlights the value of free and open access to information. Banned Books Week brings together the entire book community; librarians, booksellers, publishers, journalists, teachers, and readers of all types, in shared support of the freedom to seek and to express ideas, even those some consider unorthodox or unpopular.

By focusing on efforts across the country to remove or restrict access to books, Banned Books Week draws national attention to the harms of censorship. Check out the frequently challenged books section to explore the issues and controversies around book challenges and book banning. The books featured during Banned Books Week have all been targeted with removal or restrictions in libraries and schools. While books have been and continue to be banned, part of the Banned Books Week celebration is the fact that, in a majority of cases, the books have remained available. This happens only thanks to the efforts of librarians, teachers, students, and community members who stand up and speak out for the freedom to read.

For more information on getting involved with Banned Books Week: Celebrating the Freedom to Read, please see Ideas and Resources. You can also contact the ALA Office for Intellectual Freedom at 1-800-545-2433, ext. 4226, or

This year’s Banned Books Week is celebrating diversity. Below is a selection of books by diverse authors or containing diverse content that have been frequently challenged and/or banned.

Seven bookstores across the country are having events on the same night to celebrate diversity and Banned Books Week.

→ The First Amendment | Banned Books Week #1 (Sept. 26, 2016)

 Recent Book Reviews 
Bill Keller

Bill Keller

“Many of the questions at the heart of the matter are the same ones that have been asked since before there was a First Amendment: Are opinions protected no matter how obnoxious? Are public figures fairer game than private citizens? Is it a crime to publish material that undermines the authority of government? Is a statement libel if it’s true? . . . .”

“In an epilogue, Kluger flashes forward to the case of Edward Snowden, the intelligence insider who exposed the government’s invasion of our phones and emails, to demonstrate that “free expression remains nearly as imperiled” today as in the 18th century. Whatever you think of Snowden, that’s a stretch. No journalist has been indicted — or silenced — for publishing Snowden’s secrets. A more immediate menace to a robust press is the insatiable appetite of Google and Facebook, sucking away what’s left of the advertising revenues that support aggressive reporting. But that’s another book.”

  • David Luban

    Professor David Luban

    David Luban, Say What You Will?, New York Review of Books (Sept. 29, 2016) (reviewing Timothy Garton Ash, Free Speech: Ten Principles for a Connected World, 2016). 

“What principles should govern a connected world where speech is at once imperiled and too easy to use to do harm? That is the question Garton Ash sets out to answer in Free Speech, an informative and bracing defense of free speech liberalism in the Internet age. He reviews the philosophical underpinnings of free speech, analyzes the threats to free speech in today’s environment, and proposes principles we should embrace to foster free speech in the face of novel threats.”

“The book is part of an ambitious project inaugurated by Garton Ash and his Oxford colleagues: an international, multilingual forum to discuss free speech controversies.” 

New & Forthcoming Scholarly Articles

  1. John C. P. Goldberg & Benjamin Zipirsky, The Supreme Court’s Stealth Return to the Common Law of Torts, Fordham Law Legal Studies Research Paper (Sept. 26, 2016)
  2. Ashutosh Avinash Bhagwat, Free Speech and ‘a Law of Rules’, First Amendment Law Review (forthcoming, 2016)
  3. Richard Lorren Jolly, Think of the Children: Using IIED to Reformulate Disturbing Speech Restrictions, University of Michigan Journal of Law & Reform (2016)
  4. Robert A. Kahn,  Three First Amendment Puzzles Raised by the Police Union Response to Speech Criticizing Police Conduct in Ferguson and New York City, Alabama Civil Rights & Civil Liberties Law Review (forthcoming 2017)
  5. Helen N. Norton, Government Speech and Political Courage, Stanford Law Review Online (2015)

New & Notable Blogs

  1. Ruthann Robson, Ninth Circuit: Green Party’s First Amendment Challenge to Arizona’s 180-day Party Recognition Deadline, Constitutional Law Prof Blog, Sept. 25, 2016
  2. Erica Goldberg, First Amendment Lessons From France’s Burkini Ban Debacle, In a Crowded Theater, Sept. 22, 2016

News, Editorials, Op-eds & Blog Posts

Kit O’Connell, Debate Protesters Forced To Walk Miles To ‘Free Speech Zone’ Across A Highway From Clinton & Trump, Mint Press News, Sept. 27, 2016

  1. M.D. Kittle, State ‘disclosure’ ballot measures could chill First Amendment rights,, Sept. 27, 2016
  2. Underage dancers say strip club prohibition denies their First Amendment rights, Associated Press, Sept. 27, 2016
  3. Lamaur Stancil, Dozens protest at Trump rally’s First Amendment Zone, Florida Today, Sept. 27, 2016
  4. Court: Obscenity-laden letters protected by First Amendment, Associated Press, Sept. 27, 2016
  5. Brian Wesolowski, Tech Talk: Cybersecurity & Elections and the First Amendment & Social Media, CDT, Sept. 27, 2016
  6. Stela Sappington, Free speech, comedy on today’s college campus, The California Aggie, Sept. 26, 2016
  7. Oliver Herzfeld, Athletes In Video Games: Balancing Publicity Rights And The First Amendment, Forbes, Sept. 22, 2016


  1. The First Amendment | Banned Books Week #1 (Sept. 26, 2016)
  2. Constitution Day – What is Free Speech? The First Amendment and the University, Oregon State University (Sept. 26, 2016) (participants: Christopher McKnight Nichols, Andrew Valls, Susie Brubaker-Cole, Rebecca Gose, & Joseph Orozco).
  3. CA Supreme Court Agrees to Review Appeals Court’s Bludgeoning of Section 230 and First Amendment, Tech Dirt, Sept. 26, 2016

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

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman

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 Religious Expression 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)
  • Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

 The Court’s last  Conference was on September 26, 2016. The Court’s October sitting will begin on October 3rd. The Court’s next Conference is on October 7th.

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, #124Ellen DeGeneres raises First Amendment defense in defamation case

Next Scheduled FAN, #126: Wednesday, October 5, 2016

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