FAN 127 (First Amendment News) Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”

The case is Bennie v. MunnA cert. petition was filed recently in the Supreme Court with Damien Schiff listed as counsel of record. Before proceeding to the First Amendment issue raised, consider the opening paragraph of the Eighth Circuit’s opinion in the case; Chief Judge William J. Riley wrote for the majority:

Damien Schiff, counsels for Petitioner

Damien Schiff, counsel of record for Petitioner

“Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators after they investigated him and his broker-dealer employer around the time a newspaper reported Bennie made unkind comments about the President of the United States. The district court found that even though the regulators targeted Bennie partly in retaliation for his constitutionally protected political speech, they did not do enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s claim failed. Because we cannot say that finding was clearly wrong, we affirm.”

The Chief Judge ended his opinion by declaring: “We are not of a definite and firm conviction that a mistake was committed by the district court such that the district court clearly erred by finding the state regulators’ actions against Bennie would not have quieted a person of ordinary firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504, we affirm.”

Circuit Judge Jane L. Kelly joined in the majority opinion and Circuit Judge Clarence Beam concurred in party and dissented in part.

 In his cert. petition on behalf of Robert Bennie, Jr., Mr. Schiff contends that the case raises the following question:

“Robert Bennie, a successful financial advisor, was one of the leaders of the Lincoln, Nebraska, Tea Party. Because Bennie called President Obama “a communist” in a prominent newspaper, state regulators pressured Bennie’s employer to impose heightened supervision, conduct unannounced audits, and levy other sanctions to provide them with ‘some comfort.’

“The Constitution prohibits government officials from retaliating against individuals for protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To prevail on a First Amendment retaliation claim, a plaintiff must show, among other things, that a person of ‘ordinary firmness’ would have declined to speak in light of the government’s adverse action. The courts of appeals have split on whether a trial court’s determination on this issue is subject to clear error or de novo review. The question presented, which the court below viewed as ‘likely [] dispositive,’ is: In light of the First Amendment’s strong speech protections, are “ordinary firmness” decisions reviewed on appeal solely for clear error, as the Third, Sixth, and Eighth Circuits hold, or are they reviewed de novo, as the First, Ninth, Tenth, Eleventh, and D.C. Circuits hold?”

 Mr. Schiff argued that review should be granted for the following reasons:

I. “The decision below deepens a conflict among the Court of Appeals

           A. Like the Eighth Circuit, the Third Circuit and the Sixth Circuit Review a Trial Court’s “Ordinary Firmness” Determination for Clear Error

           B. In Contrast, the First, Ninth,Tenth, Eleventh, and D.C. Circuits, Review a Trial Court’s ‘Ordinary Firmness’ Finding DeNovo

II.  Certiorari should be granted to bring clarity to an important and reoccurring federal question that is clearly presented in this case.”

In a blog post on the Volokh Conspiracy, here is how Professor Eugene Volokh viewed the matter:

Prof. Eugene Volokh

Professor Eugene Volokh

“I think that, when it comes to decisions about what would “chill an ordinary person’s speech,” appellate courts should not defer to trial court findings. This sort of question isn’t a pure question of historical fact, as to which such deference is usually proper; rather, it’s a question of application of law to fact, which courts should review de novo, especially when First Amendment issues are at stake. There was some Eighth Circuit precedent suggesting that courts should indeed defer on such questions, which is why I think the Eighth Circuit should have reheard the matter en banc; I quote the amicus brief below.”

“But for now, whether or not Bennie should have won his case, I think that the Nebraska regulators’ actions were quite wrong, as the Eighth Circuit panel pointed out; and I thought they were worth airing.”

Headline: “Federal Court Blocks Louisiana’s Online Age-Verification Law for Violating First Amendment”

According to an ACLU press release, a “federal judge has signed an order permanently preventing Louisiana from enforcing a 2015 state law that required websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.”

largerlogopictures_0“[Chief] Judge Brian A. Jackson had previously granted a preliminary injunction in the case, Garden District Book Shop v. Stewart. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.”

“The plaintiffs in the case are two independent booksellers, Garden District Book ShopOctavia Books, Future Crawfish Paper (publisher of Anti-Gravity magazine), the American Booksellers Association and Comic Book Legal Defense Fund. The lawsuit was brought by the Media Coalition and the American Civil Liberties Union.

“The law, enacted as H.B. 153, required that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tried to access the material, would have been a crime subject to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything”


“To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.”

“The federal district court found in its preliminary injunction ruling that ‘[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.’ . . .”

Garden District Book Shop v. Caldwell (Oct. 7, 2016, U.S. Dist. Ct., Middle Hist., La.) (order of final decree & judgement)

→ Complaint for Declaratory & Injunctive Relief

Attorneys for Plaintiffs: Michael A. Bamberger, Richard M. Zuckerman, Esha Bhandari, Lee Rowland, Stephen A. Dixon & Candice C. Sirmon

[ht: Media Coalition]

Headline: “Environmentalists and Corporations Struggle Over Boundaries of Free Speech”

Writing in the Epoch Times, Tara Maclsaac, reports that “Activists and bloggers expressing concerns about the environmental practices of some companies have been hit with multi-million-dollar defamation suits.For example, four residents in Uniontown, Alabama, are being sued for comments they made on Facebook about a local landfill. The company that operates the landfill is claiming $30 million in damages to its business.”

“The highest court in Massachusetts heard arguments in a similar case on Oct. 7. Karen Savage and Cherri Foytlin wrote a blog post in 2013 alleging that scientific consulting company ChemRisk had oil industry ties. They had thus called into question a ChemRisk’s study that declared cleanup workers at the Deepwater Horizon oil spill site were not exposed to harmful airborne chemicals.”

Just think what a massive muzzle we’d all live with if we all thought we’d be sued at any moment if our opinions might be slightly inaccurate online.Lee Rowland

“In both cases—and hundreds of others popping up around the country every year—the defendants say the lawsuits were just meant to scare them into retracting their statements and discourage others from speaking out. . . .”

“David Green, president of Green Group Holdings, the company that owns the Uniontown landfill in question, [said]: ‘All local residents have the right to oppose us and to exercise their free speech right to protest if they want. What they don’t have is a right to intentionally make false and defamatory statements of fact that damage our reputation and our ability to do business—which is exactly what they have done.’ . . .”

Patent Law & the First Amendment — Judge Mayer’s Concurrence

Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm.

Here are some excerpts from Judge Haldane R. Mayer’s concurrence in Intellectual Ventures v. Symantec (Fed. Cir. 2016):

I agree that all claims on appeal fall outside of 35 U.S.C. § 101. I write separately, however, to make two points:

  1. patents constricting the essential channels of online communication run afoul of the First Amendment; and
  2. claims directed to software implemented on a generic computer are categorically not eligible for patent.

I. “[T]he Constitution protects the right to receive information and ideas. This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) . . . .

Judge Haldane R. Mayer

Judge Haldane R. Mayer

Although the claims at issue here disclose no new technology, they have the potential to disrupt, or even derail, large swaths of online communication. U.S. Patent No. 6,460,050 (the “’050 patent”) purports to cover methods of “identifying characteristics of data files,” ‘050 patent, col. 8 l. 13, whereas U.S. Patent No. 6,073,142 (the “’142 patent”) broadly claims systems and methods which allow an organization to control internal email distribution, ‘142 patent, col. 1 ll. 15–34. U.S. Patent No. 5,987,610 (the “’610 patent”) describes, in sweeping terms, screening a communication for viruses or other harmful content at an intermediary location before delivering it to an addressee. See ‘610 patent, col. 14 ll. 34–47. The asserted claims speak in vague, functional language, giving them the elasticity to reach a significant slice of all email traffic. . . . Indeed, the claims of the ‘610 patent could reasonably be read to cover most methods of screening for harmful content while data is being transmitted over a network.. . .

Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. See Golan v. Holder, 132 S. Ct. 873, 889–93 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219–21 (2003). In the copyright context, the law has developed “built-in First Amendment accommodations.” Eldred, 537 U.S. at 219; see also Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 201 (1985) (noting that the Lanham Act contains safeguards to prevent trademark protection from “tak[ing] from the public domain language that is merely descriptive”). Specifically, copyright law “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” Eldred, 537 U.S. at 219; see also Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) (explaining that “copyright’s idea/expression dichotomy” supplies “a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” . . . . It also applies a “fair use” defense, permitting members of “the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” Eldred, 537 U.S. at 219; see 17 U.S.C. § 107 (“[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”).

Just as the idea/expression dichotomy and the fair use defense serve to keep copyright protection from abridging free speech rights, restrictions on subject matter eligibility can be used to keep patent protection within constitutional bounds. Section 101 creates a “patent-free zone” and places within it the indispensable instruments of social, economic, and scientific endeavor. . . . Online communication has become a “basic tool[ ],” Benson, 409 U.S. at 67, of modern life, driving innovation and supplying a widely-used platform for political dialogue. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (noting that the Internet “is a ubiquitous information-transmitting medium”) . . . . Section 101, if properly applied, can preserve the Internet’s open architecture and weed out those patents that chill political expression and impermissibly obstruct the marketplace of ideas. . . .

The public has a “paramount interest in seeing that patent monopolies … are kept within their legitimate scope.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144 (2016) . . . . Nowhere is that interest more compelling than in the context of claims that threaten fundamental First Amendment freedoms. . . . “As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997). A robust application of section 101 at the outset of litigation will ensure that the essential channels of online communication remain “free to all men and reserved exclusively to none,” Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948).

II.  Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents. The claims at issue in Alice were directed to a computer-implemented system for mitigating settlement risk. 134 S. Ct. at 2352–53. Although the petitioners argued that their claims were patent eligible because they were tied to a computer and a computer is a tangible object, the Supreme Court unanimously and emphatically rejected this argument. Id. at 2358–60. The Court explained that the “mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Id. at 2358. Accordingly, “[t]he fact that a computer necessarily exist[s] in the physical, rather than purely conceptual, realm is beside the point” in the section 101 calculus. Id. . . .

Software is a form of language—in essence, a set of instructions. See Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 447 (2007) (explaining that “software” is “the set of instructions, known as code, that directs a computer to perform specified functions or operations” (citations and internal quotation marks omitted)); see also 17 U.S.C. § 101 (defining a “ ‘computer program,’ ” for purposes of the Copyright Act, as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”). It is inherently abstract because it is merely “an idea without physical embodiment,” Microsoft, 550 U.S. at 449 (emphasis added). Given that an “idea” is not patentable, see, e.g., Benson, 409 U.S. at 67, and a generic computer is “beside the point” in the eligibility analysis, Alice, 134 S. Ct. at 2358, all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.

The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain. See Flook, 437 U.S. at 593 n.15 (“[I]n granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed” (citations and internal quotation marks omitted)). Because generic computers are ubiquitous and indispensable, in effect the “basic tool [ ],” Benson, 409 U.S. at 67, of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero. See Alice, 134 S. Ct. at 2358 (“Stating an abstract idea while adding the words ‘apply it with a computer’ simply combines those two steps, with the same deficient result.”).

Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself. See Mackay Radio & Tel. Co. v. Radio Corp., 306 U.S. 86, 94 (1939) (“While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.”). It is well past time to return software to its historical dwelling place in the domain of copyright. See Benson, 409 U.S. at 72 (citing a report from a presidential commission explaining that copyright is available to protect software and that software development had “undergone substantial and satisfactory growth” even without patent protection) . . . .

From an eligibility perspective, software claims suffer from at least four insurmountable problems. First, their scope is generally vastly disproportionate to their technological disclosure. In assessing patent eligibility, “the underlying functional concern . . . is a relative one: how much future innovation is foreclosed relative to the contribution of the inventor.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1303 (2012); see also Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 513 (1917) . . . . Software patents typically do not include any actual code developed by the patentee, but instead describe, in intentionally vague and broad language, a particular goal or objective. . . . Here, for example, the ‘610 patent discusses the objective of “screen[ing] computer data for viruses . . . before communicating the computer data to an end user,” ‘610 patent, col. 1 ll. 59–61, but fails to disclose any specific, inventive guidance for achieving that goal. In effect, the ‘610 patent, like most software patents, describes a desirable destination but neglects to provide any intelligible roadmap for getting there.

A second, and related, problem with software patents is that they provide incentives at the wrong time. Because they are typically obtained at the “idea” stage, before any real inventive work has been done, such patents are incapable of effectively incentivizing meaningful advances in science and technology. “A player focused on patenting can obtain numerous patents without developing any of the technologies to useful levels of deployment or disclosure, leaving a minefield of abstract patent claims for others who actually deploy software.” Seltzer, 78 Brook. L. Rev. at 931. Here, for example, it took no significant inventive effort to recognize that communications should be screened for harmful content before delivery. The hard work came later, when software developers created screening systems capable of preventing our email boxes from being overrun with spam or disabled by viruses. Granting patents on software “ideas”—before they have been actually reduced to practice—has created a perverse incentive scheme. Under our current regime, those who scamper to the PTO early, often equipped with little more than vague notions about using computers to automate well-known business and social practices, can reap hefty financial dividends. By contrast, those who actually create and deploy useful computer-centric products are “rewarded” with mammoth potential infringement liability. . . .

Yet another intractable problem with software patents is their sheer number. See Brief Of Amici Curiae Checkpoint Software, Inc. et al. in Support of Respondents, Alice, 134 S. Ct. 2347 (No. 13-298), 2014 . . . . (“[B]ecause computer products—as opposed to patents—inevitably integrate complex, multicomponent technology, any given product is potentially subject to a large number of patents. . . . Some industry experts have estimated that 250,000 patents go into a modern smartphone.”) Given the vast number of software patents—most of which are replete with broad, functional claims—it is virtually impossible to innovate in any technological field without being ensnared by the patent thicket. . . . .

Fourth, and most fundamentally, generically-implemented software invariably lacks the concrete borders the patent law demands. See, e.g., Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F. Supp. 456, 462 (D. Mass. 1997) (“The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps ‘no there there,’ the ‘there’ is everywhere where there is Internet access.”). Patent protection is all about boundaries. An applicant has the right to obtain a patent only if he can describe, with reasonable clarity, the metes and bounds of his invention. . . . A properly issued patent claim represents a line of demarcation, defining the territory over which the patentee can exercise the right to exclude. . . .

Software, however, is akin to a work of literature or a piece of music, undeniably important, but too unbounded, i.e., too “abstract,” to qualify as a patent-eligible invention. See Microsoft, 550 U.S. at 447–48 (explaining that software “instructions . . . detached from any medium” are analogous to “[t]he notes of Beethoven’s Ninth Symphony”). And, as discussed previously, given that generic computers are both omnipresent and indispensable, they are incapable of providing structure “sufficiently definite to confine the patent monopoly within rather definite bounds,” Benson, 409 U.S. at 69. In short, because directing that software should be applied via standard computer elements is little different than stating that it should be written down using pen and paper, generically-implemented software lacks the concrete contours required by section 101. See Alice, 134 S. Ct. at 2352 (emphasizing that “merely requiring generic computer implementation” does not remove claims from the realm of the abstract).

Declaring that software implemented on a generic computer falls outside of section 101 would provide much-needed clarity and consistency in our approach to patent eligibility. It would end the semantic gymnastics of trying to bootstrap software into the patent system by alleging it offers a “specific method of filtering Internet content,” see BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016), makes the computer faster, see Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337–39 (Fed. Cir. 2016), or the Internet better, see DDR Holdings, LLC v., L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), just to snuggle up to a casual bit of dictum in Alice, 134 S. Ct. at 2359. Software runs computers and the Internet; improving them up to the current limits of technology is merely more of the same. The claims at issue in BASCOMEnfish, and DDR, like those found patent ineligible in Alice, do “no more than require a generic computer to perform generic computer functions,” Alice, 134 S. Ct. at 2359. Eliminating generically-implemented software patents would clear the patent thicket, ensuring that patent protection promotes, rather than impedes, “the onward march of science,” O’Reilly v. Morse, 56 U.S. (15 How.) 62, 113 (1853), and allowing technological innovation to proceed apace.

[ht: Professor Dennis Crouch]

Free Speech Week: Oct. 17-23, 2016


See here.

College Campuses & Free Speech 

  1. Stuart Smith, Students angered by ‘free speech wall’ built in plaza Tuesday, The Collegian, Oct. 11, 2016
  2. Sonny Bunch, UVA Jettisons Free Speech Over Fear of Backlash, The Editor’s Blog, Oct. 11, 2016
  3. Dave Huber, Alleged ‘racially charged’ messages on U. Denver ‘free speech wall’ provoke student snowflakery, The College Fix, Oct. 10, 2016
  4. Sarah McLaughlin, What Campus Leaders Had To Say About Free Speech This Week, FIRE, October 7, 2016
  5. Campus Craziness: Free speech used to bar Sheriff Clarke, Fox News, Oct. 7, 2016 (YouTube)
  6. Derek Hawkins, University of North Dakota, citing First Amendment, won’t punish students for blackface Snapchat photos, Washington Post, October 7, 2016
  7. Wade Rupard, UND finds no code violations in two racially charged photo incidents, Bemidji Pioneer, Oct. 6, 2016
  8. Ashe Schow, University president rejects ‘zero tolerance’ policy for speech, Washington Examiner, October 6, 2016
  9. Anthony L. Fisher, Janet Napolitano Defends Free Speech on University of California Campus,, Oct. 3, 2016
  10. Heidi Katter, Buckley event addresses free speech on campus, Yale News, Oct. 3, 2016
  11. Timothy McGettigan, Survival of the Fittest Ideas: The Enduring Importance of Free Speech on Campus, SSRN (Sept. 4, 2016)

Jameel Jaffer, “A First Amendment in the Digital Age”— Peter Zenger Lecture

Oct. 4, 2016, the Columbia Journalism School hosted the Peter Zenger Lecture. Here are a few excerpts from Jameel Jaffer‘s lecture:

Jameel Jaffer

Jameel Jaffer

“. . . The digital age, our age, will give rise to many novel and vexing questions relating to the scope and substance of First Amendment freedoms.  One reason for this is that the Supreme Court’s seminal cases relating to the freedoms of speech and the press—the cases that shape our public spaces and public discourse today—were decided half a century ago.  They were decided before the advent of the internet, the rise of technology giants like Apple and Microsoft, the invention of the search engine, the arrival on the world stage of transnational transparency activists, the development of end-to-end encryption, and the emergence of social media.  Some of the factual assumptions that underlie seemingly settled First Amendment principles may no longer be sound.  At the very least, over the next decade or two the courts will have to determine whether to apply old precedents to very different contexts.”

“What I’d like to propose here is that questions about surveillance, official secrecy, and individual privacy—the questions that Snowden’s story provokes—will be among the most significant that the First Amendment will have to answer.  What is the government entitled to know about us, and what are we entitled to know about it?   Here in the United States, the post-Snowden debate has taken place against the backdrop of the Fourth Amendment’s protection against unreasonable searches and seizures, but questions relating to surveillance, secrecy, and privacy have long been the province of the First Amendment, too.  The First Amendment has long been understood, for example, to limit the scope of the government’s surveillance power. It’s long been understood to give the public, in certain narrow contexts at least, a right of access to information the government would prefer to withhold.  Whistleblowers have sometimes argued that the First Amendment limits the government’s power to punish them for disclosing official secrets. The First Amendment had something to say about surveillance, secrecy, and privacy before the era of smartphones and social media. I’d like to consider, or at least begin to consider, what the First Amendment might have to say about these topics—and what it should have to say about these topics—now that the digital age has arrived. . . .”

Coming Soon: 2016 Jefferson Symposium: Free Speech on Campus


This from the folks at the Thomas Jefferson Center for the Protection of Free Expression

On October 13–14, 2016 the University of Virginia School of Law will host the third biennial Jefferson Symposium. This year’s symposium, to be held at the Law School, will explore contemporary attitudes surrounding free speech at American colleges and universities.

The assembly of panelists is sure to provide a fascinating and balanced look at one of the most difficult First Amendment issues currently facing our country. Among the speakers appearing at this year’s symposium are university presidents (Teresa Sullivan, University of Virginia, Jeffrey Herbst, Colgate University, Edward Ayers, University of Richmond), First Amendment experts (Geoffrey Stone, Eugene Volokh, and Leslie Kendrick), and humorists (including Kelly Carlin, George Carlin’s daughter), as well as advocates for restraints on hurtful or hostile speech.

Admission is free and the event is open to all members of the public.

If you are an attorney interested in receiving Continuing Legal Education credit for attending the symposium, please call (434) 295-4784 for more information.

You can download a complete schedule for the symposium here.

Shiffrin vs. Strassel: Who are the First Amendment’s Friends & Foes? 


 Steven H. Shiffrin, What’s Wrong with the First Amendment? (Cambridge University Press, 2016)

 Kimberley Strassel, The Intimidation Game: How the Left is Silencing Free Speech (Twelve, June 27, 2017)410aduqxrgl-_sx326_bo1204203200_

New & Forthcoming Books

  1. Bill Hallowell, Fault Line: How a Seismic Shift in Culture is Threatening Free Speech and Shaping the Next Generation (Frontline, March 7, 2017)
  2. Michael Donnelly, Freedom of Speech and the Function of Rhetoric in the United States (Lexington Books, Dec. 15, 2016)
  3. Samantha Barbas, Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (Stanford Law Books, January 18, 2017)
  4.  Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (NYU Press, February 14, 2017)
  5. Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, March 9, 2017)
  6. Pekka Hallberg & Janne Virkkunen, Freedom of Speech and Information in Global Perspective (Palgrave Macmillan, April 8, 2017)
  7. Robert Spencer, The Complete Infidel’s Guide to Free Speech (Regnery Publishing, July 25, 2017)

New & Forthcoming Scholarly Articles

 Joel Gora, “In the Business of Free Speech: The Robert Court and Citizens United,” in Jonathan A. Adler, Business and the Roberts Court (Oxford University Press, 2016), pp. 227-263.

Andrew Tutt, Commoditized Speech, ‘Bargain Fairness,’ and the First Amendment, Brigham Young University Law Review (forthcoming 2016-17)

  1. Clay Calvert, The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection?, UCLA Law Review Discourse (2016)
  2. Rebecca L. Brown, The Harm Principle and Free Speech, Southern California Law Review (2016)
  3. Nicole B. Cásarez, The Synergy of Privacy and Speech, Journal of Constitutional Law (2016)
  4. Anthony D. Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, Columbia Law Review (2016) (student note)
  5. Allison June Luzwick, Human Trafficking and Pornography: Familiar Bedfellows — Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, SSRN (Sept. 29, 2016)
  6. 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)
Jim Caruso

Jim Caruso


  • Good Beer, No Censorship, So to Speak (FIRE) (Nico Perrino interviews Jim Caruso & Erin Weston of Flying Dog Brewery)

News Stories, Editorials, Op-Eds, Letters, & Blog Posts 

Floyd Abrams, Ban Hate Speech?, New York Review of Books, Sept. 29, 2016 (response to David Luban’s review of Free Speech: Ten Principles in a Connected World by Timothy Garton)

  1. Lisa Peet, Kansas City Libraries Defend Free Speech in Face of Arrests, Resignations, Library Journal, Oct. 11, 2016
  2. Editorial, Free speech, even for racists, The Blade, Oct. 11, 2016
  3. Kieran Corcoran, Free Speech Groups Warn Against Legal Crackdown on Social Media, HeatStreet, Oct. 11, 2016
  4. Barton Hinkle, Does the First Amendment Cover Books, Movies or Netflix?,, Oct. 10, 2016
  5. Scott Cook, GF City Council to decide if panhandling ordinance goes against First Amendment, WDAZ8/ABC, Oct. 10, 2016
  6. Jack Greiner, First Amendment protects ballot selfie,, Oct. 7, 2016
  7. Dune Lawrence, Will the First Amendment Protect From Pimping Charges?, Bloomberg Business, October 7, 2016
  8. Sam Rosenstiel, Six at Six lecture tackles renowned pornography publisher, First Amendment rightsThe Northerner, Oct. 6, 2016
  9. Maxine Bernstein, Ammon Bundy: Guns allowed Oregon refuge occupiers to express First Amendment rights, The Oregonian, Oct. 6, 2016
  10. Tanya Carter, Social media and the first amendment, WTVA (Fox), Oct. 6, 2016

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

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman
  2. Lee v. Tam

Pending Petitions*

  1. Bennie v. Munn
  2. Augsburg Confession
  3. Bondi v. Dana’s Railroad Supply
  4. Flytenow v. Federal Aviation Administration
  5. Packingham v. North Carolina

Cert. Denied

  1. Armstrong v. Thompson
  2. Wolfson v. Concannon
  3. Dart v.
  4. NCAA v. O’Bannon
  5. Mech v. School Board of Palm Beach County
  6. Williams v. Coalition for Secular Government 
  7. Pro-Football v. Blackhorse 

Free Speech Related Cases

  • Doe v. LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

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 next Conference is on October 14, 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, #126Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times”

Next Scheduled FAN, #128: October 19, 2016

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