FAN 134 (First Amendment News) “Anti-Semitism Awareness Act” ignites First Amendment controversy

The bill was proposed by Senators Bob Casey, a Pennsylvania Democrat, and Tim Scott, a South Carolina Republican, to “ensure the Education Department has the necessary statutory tools at their disposal to investigate anti-Jewish incidents,” according to a news release. The senators say the act is not meant to infringe on any individual right protected under the First Amendment, but rather to address a recent uptick in hate crimes against Jewish students. The bill is supported by the American Israel Public Affairs Committee, the Anti-Defamation League, the Jewish Federations of North America and the Simon Wiesenthal Center. . . . The bill has attracted criticism from groups including Palestine Legal and Jewish Voice for Peace, who say the proposed definition of anti-Semitism wrongly conflates any criticism of Israel with anti-Jewish sentiments. — Colleen Flaherty, Inside Higher Ed (Dec. 2, 2016)

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View # 1: Opposition to the “Anti-Semitism Awareness Act”

Liz Jackson, a staff attorney for Palestine Legal in Oakland, recently published an op-ed in the Los Angeles Times. The piece was titled “The Anti-Semitism Awareness Act would damage free speech rights on campus.” Here are a few excerpts:

Liz Jackson

Liz Jackson

“[T]he U.S. Senate . . . pass[ed] a bill last week called the Anti-Semitism Awareness Act, which cracks down on the constitutional rights of college students and faculty to criticize Israel. The House will vote on it any day now.”

“The Anti-Semitism Awareness Act endorses the State Department definition of anti-Semitism, which includes ‘delegitimizing’ Israel, ‘demonizing’ Israel or holding Israel to a ‘double standard.’ The bill directs the Department of Education to consider this definition when investigating complaints of anti-Semitism on campus. But the bill does not add any new protections for Jewish students; the Civil Rights Act of 1964, and the Department of Education’s interpretation of the statute, already protects Jewish students against discrimination.”

“The State Department standard is highly controversial because it conflates criticism of Israeli policies with anti-Jewish hatred, shutting down debate by suggesting that anyone who looks critically at Israeli policy is somehow beyond the pale. It has no place on college campuses in particular, where we need students to engage in a vigorous exchange of ideas — especially around our world’s most intractable problems, such as Israel’s nearly 50-year military occupation of Palestine.”

“The University of California rejected the same definition in 2015 after an outcry from free-speech advocates across the political spectrum, newspapers, students, graduate student instructors, and Jewish and other civil rights organizationsJewish commentators, including the definition’s original drafter, Kenneth Stern, repudiated its use on college campuses.”

“As a Jewish student at Berkeley Law in 2010, I joined the campaign pushing the university to divest from companies complicit in Israel’s occupation and violations of Palestinian rights. I was shocked when Israel advocacy organizations claimed that our support for Palestinian equality was so distressing for some Jewish students that the university should not even let us debate the issue. . . .”

View # 2: In Defense of the “Anti-Semitism Awareness Act”

This from a press release from the Anti-Defamation League:

“The Anti-Defamation League (ADL) today hailed Senate passage of the Anti-Semitism Awareness Act, legislation which provides important guidance for the Department of Education and the Department of Justice for federal anti-discrimination investigations involving anti-Semitism, including on campus.”

unknown“The act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful discriminatory conduct?”

“ADL played a central role in working with U.S. Senators Tim Scott (R-SC) and Bob Casey (D-PA) in crafting and promoting the legislation. The League also urged the House of Representatives to approve the legislation before adjournment later this month.”

“‘We welcome Senate passage of this important legislation, which will help the Department of Education and Department of Justice to effectively determine whether an investigation of an incident of anti-Semitism is warranted under federal education anti-discrimination laws,” said Jonathan A. Greenblatt, ADL CEO. “This act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful, discriminatory conduct.'”

“. . . . This legislation uses a 2010 definition of anti-Semitism developed by the State Department’s Special Envoy to Monitor and Combat Anti-Semitism as a reference point that can be useful in their cases, including select instances when discriminatory anti-Semitic conduct may be couched as anti-Israel or anti-Zionist.  The legislation instructs the Department of Education to draw on this definition as part of its assessment of whether incidents are motivated by anti-Semitism when investigating possible violations of Title VI of the Civil Rights Act of 1964 based on individuals’ Jewish heritage or ethnicity. The legislation takes great pains to protect freedom of expression.”

“‘To effectively address reported anti-Jewish incidents that may violate federal education anti-discrimination laws, it is necessary to understand the evolving, current manifestations of anti-Semitism,” Mr. Greenblatt said. “The State Department definition includes useful illustrative examples and can be an important resource.  However, it is also vital to accurately distinguish protected speech – including disagreement and even harsh criticism of the government of Israel – from harassing, intimidating, and discriminatory anti-Semitism.'” . . . .

Related Articles

Josh Nathan-Kazis, Expert on Hate Opposes Campus Anti-Semitism Bill — Based on Definition He Created, Forward, Dec. 6, 2016 (“‘If this bill is passed, its proponents will have the ability to threaten federal funding at colleges and universities where political speech against Israel occurs, and where administrators then don’t try to stop it, or fail to put the university on record calling such speech anti-Semitic,’ Stern wrote. ‘Think of the precedent this would set.'”)

Lea Speyer, Responding to Backlash, Co-Sponsor of House Antisemitism Act Insists Legislation Will Not ‘Diminish, Infringe on’ First Amendment Rights, The Algemeiner, Dec. 6, 2016

Headline: “Purdue’s free-speech orientation program could go national”

Writing in The College Fix, Greg Piper reports that “Indiana’s Purdue University is making a strong play for best public university in the country, based on its demonstrated commitment to free speech.”

unknown“And now it’s getting interest in taking that approach to other schools, whose leaders may be tiring of giving in to student demands to censor and punish students, faculty and staff for their speech and nonthreatening behaviors.”

“The university has been approached by NASPA (Student Affairs Administrators in Higher Education) to present the “methodology” for its “free speech orientation program” – the first of its kind in the nation – at an upcoming conference, Director of Student Success Programs Dan Carpenter told the Foundation for Individual Rights in Education. . . .”

Related: David Schutte, Law School holds First Amendment rights event, The Cavalier Daily, Dec. 2016

White nationalist’s speech draws protests at Texas A&M University

Richard Spencer

Richard Spencer

Reuters reporter Lisa Maria Garza reports that “Texas A&M University students and activists protested against a speech on Tuesday by white nationalist Richard Spencer, who was filmed at a conference last month saying “Hail Trump”, drawing Nazi-like salutes from some spectators.”

“About 1,000 demonstrators waved flags, marched, sang songs and shouted through loudspeakers outside the Memorial Student Center on the campus, where Spencer was speaking, as state police in riot gear stood by, blocking them from entering.”

“Caitlin Miles, a 26-year-old graduate student, stood on top of a box and yelled over the sound of tambourines and trumpets, telling her fellow demonstrators not to engage with any Spencer supporters.”

“‘He has made a lot of remarks and promoted chants that hail back to Nazi slogans. This is a campus that sacrificed nearly half of its student body to fight Nazis,’ Miles told Reuters. . . .”

“The university in College Station, Texas, said its leaders explored whether it could legally prohibit Spencer’s event, but ultimately recognized its obligation to uphold free speech, university spokeswoman Amy Smith said. . . .”

Trump & the Flap over the Flag

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Justice Antonin Scalia – Flag Burning Is Free Speech (2012 interview with CNN)

Robert Corn-Revere on Flag Desecration and Free Speech, Closeup, Newseum (02-28-08) (begins at 13:20 into discussion)

Robert Corn-Revere, Implementing a Flag-Desecration Amendment to the U.S. Constitution, First Amendment Center First Report (07.01.05)

  1. Kathleen Parker, Trump seems ready to burn down First Amendment, The Register-Guard, Dec. 6, 2016
  2. Kirsten Salyer, Burning Flags, Screaming ‘Trump’ and Our First Amendment, Time, Dec. 5, 2016
  3. Editorial, So now Trump is “endangering” the First Amendment, Hot Air, Dec. 5, 2016
  4. Erik Wemple, Pray for the First Amendment. Now., Washington Post, Dec. 4, 2016
  5. Scott Bomboy, Flag burning and the First Amendment: Yet another look at the two, Constitution Daily, Nov. 30, 2016
  6. Andrew Napolitano, Trump ‘offended’ the first amendment !!, Fox news, Nov. 30, 2016
  7. Alan Dershowitz, The First Amendment is not broken so let’s not try to fix it, Fox News, Nov. 30, 2016
  8. Mark Hensch, GOP rep: ‘No president is allowed to burn the First Amendment’, The Hill, Nov. 29, 2016
  9. Mark Hensch, House GOP leader on flag burning: ‘We’ll protect our First Amendment’, The Hill, Nov. 29, 2016
  10. Philip Bump, Donald Trump v. the First Amendment, Part 5, Washington Post, Nov. 29, 2016
  11. Max Kutner, Before Donald Trump Called for Flag-Burning Jail Time, Hillary Did, Newsweek, Nov. 29, 2016
  12. Ken Paulson, Trump tweet set Constitution ablaze, USA Today, Nov. 29, 2016

Justice Alito: Remarks at Federalist Society Conference

Justice Alito

Justice Samuel Alito

Bradford Richardson, writing in the Washington Times, reported that  “Justice Alito noted several ‘constitutional fault lines’ that threaten to destabilize the republic. Many concern the Bill of Rights, such as the Democratic Party’s effort to amend the First Amendment to allow the government to regulate political speech.”

“‘In places in the country where they have those lines, sometimes the earth starts to tremor, and people get worried about what’s coming,’ Justice Alito said. ‘So think about some of the constitutional fault lines that we have at the present time. Take freedom of speech. More than 40 senators have proposed an amendment to the First Amendment. … And what would that amendment do? It would have the effect of granting greater free speech rights to an elite group, those who control the media, and everybody else.'”

”Nino said he grew up in a melting pot,” the justice said. “I will not say that, because I know that, according to the powers that be in the University of California university system, the phrase ‘melting pot’ is a microaggression. But the people of Nino’s Queens didn’t know it was a microaggression.”

“While discussing Scalia’s transformative influence on oral argument, Justice Alito mocked the campus trend of designating physical ‘safe spaces’ free from thoughts with which liberal students disagree.””‘It became a contact sport,’ Justice Alito said of oral argument. ‘The courtroom was not a safe space when Nino was on the bench.'”

→ See also Adam Liptak, Supreme Court Agenda in the Trump Era? A Justice Seems to Supply One, New York Times, Nov. 28, 2016

Free speech vs. copyright in Canadian Supreme Court

This from the Canadian Press: “OTTAWA — Supreme Court of Canada justices challenged Google’s lawyers Tuesday for arguing that the company’s own free speech rights are being compromised by a B.C. injunction ordering it to delete material from its web searches.The high court was hearing arguments in a case that pits the Internet giant against a British Columbia technology firm and highlights the ever-present tension between free speech and copyright infringement.At issue is whether Canadian courts have the jurisdiction to make sweeping orders to block access to content on the Internet beyond Canada’s borders.”

google-200x200-7714256da16f“Google is challenging a 2015 ruling by the British Columbia Court of Appeal that ordered it to stop indexing or referencing websites linked to a company called Datalink Technologies Gateways.”

“The B.C. appeal court granted that injunction at the request of Equustek Solutions Inc., which won a judgment against Datalink for essentially stealing, copying and reselling industrial network interface hardware that it created.”

“Burnaby-based Equustek wanted to stop Datalink from selling the hardware through various websites and turned to Google for help.”

“Initially, Google removed more than 300 URLs from search results on Google.ca, but more kept popping up, so Equustek sought — and won — the broader injunction that ordered Google to impose a worldwide ban. . . .”

Roger Williams University launches First Amendment blog 

RWU President Donald J. Farish

RWU President Donald J. Farish

According to the Providence Journal, “Roger Williams University has launched a First Amendment blog to provide ‘a timely new venue for debating, discussing and defending the five freedoms guaranteed by the First Amendment,’ the university announced Tuesday.”

“The blog draws its inspiration from Roger Williams, Rhode Island’s founder who advocated for separation of church and state – a concept that’s now a cornerstone of American democracy.”

“‘The blog will draw on the expertise of faculty, staff and students at RWU, which contains the state’s only law school, a journalism program and experts on a range of First Amendment issues.'”

“Topics will range from those as old as the nation, and current events such as U.S. Supreme Court rulings on flag burning.”

“‘It is particularly appropriate that Roger Williams University would have a blog relating to the First Amendment, given the stance taken by our namesake on the need to separate civil governance from the practice of religion,’ RWU President Donald J. Farish said. . . .”

Ferndale Enterprise publisher Caroline Titu receives First Amendment Coalition award

The Ferndale Enterprise’s Caroline Titus (left) & Bay Area News Group’s Thomas Peele hold their Free Speech & Open Government awards presented to them by the First Amendment Coalition’s (FAC) Karl Olson (center) at the 139th annual Winter Meeting of the California Press Foundation

Caroline Titus (left) & Bay Area News Group’s Thomas Peele hold their Free Speech & Open Government awards presented to them by the First Amendment Coalition’s Karl Olson (center)

In a news story in the Times Standard, Hunter Cresswell reports that “The First Amendment Coalition awarded Ferndale Enterprise publisher/editor Caroline Titus the 2016 Free Speech & Open Government Award on Thursday during the California Press Foundation’s annual meeting in San Francisco.”

“‘I am extremely proud to be honored by such a prestigious organization. I’m also honored to represent the 138-year-old Ferndale Enterprise and our readers who support our efforts to stand up for the First Amendment and open and transparent government,’ she said in an email.”

“Titus was one of two journalists selected out of more than 24 nominees. This is the third award Titus has received this year for her First Amendment civil rights lawsuit filed in 2014 and a public records lawsuit against the Humboldt County Fair Association. Earlier this year the fair board settled for $150,000 with Titus in the wrongful termination and federal civil rights lawsuit and awarded her $45,000 in attorney’s fees for the public record lawsuit. . . .”

So to Speak Podcast Interview with Marty Garbus 

51meca8wgvl-_sx346_bo1204203200_Forthcoming Books

This is a valuable introduction to a field that will become only more significant with the development of new media, such as virtual reality and digital mapping, that could merit First Amendment protection.”  Publishers Weekly

New & Forthcoming Scholarly Articles

  1. Alexander Tsesis, Campus Speech and Harassment, Minnesota Law Review (2016)
  2. Patricia L. Nemetz The Good, the Bad, and the Ugly of Corporate Personhood and Corporate Political Spending: Implications for Shareholders, Business and Society Review (2016)

News, Editorials, Op-eds, & Blog Posts 

→ Clarence Page, Does the First Amendment protect fake news?, Chicago Tribune, Dec. 6, 2016

Stephanie Saul, Campus Press vs. Colleges: Kentucky Suit Highlights Free-Speech Fight, New York Times, Dec. 2, 2016

  1. Douglas Ernst, White House forced to remind press corps that free speech protected by First Amendment, Washington Times, Dec. 6, 2016
  2. Allan Smith, Time Warner CEO: The ‘real threat’ to the First Amendment came from Democrats, not Trump, Business Insider, Dec. 6, 2016
  3. Onan Coca, Comedian Tim Allen Destroys Whiny Liberal College Students and their Attacks on Free Speech!, Constitution, Dec. 6, 2016
  4. Antonia Blumberg, America’s Muslim Leaders Call On Trump To Protect Their First Amendment Rights, Huffington Post, Dec. 5, 2016
  5. Kimberley Haas, Leaders say Durham mural is art protected by First Amendment, Union Leader, Dec. 5, 2016
  6. Casey Sullivan, Floyd Abrams on Trump, Fake News, and 53 Years at Cahill, Big Law Business, Dec. 1, 2016
  7. Stephen Schwinn, Eleventh Circuit Denies Immunity in Police Officer’s Free Speech Case, Constitutional Law Prof Blog, Dec. 1, 2016

Today in First Amendment History: Remembering A.L. Wirin

December 7, 1956: “ACLU Attorney A.L. Wirin Ejected From HUAC Hearing”

A.L.Wirin, Attorney for the ACLU of Southern California, was ejected from a hearing by the House Un-American Activities Committee (HUAC) on this day. The HUAC hearings in Los Angeles included an investigation of the American Committee for the Protection of the Foreign-born, a left-wing-oriented immigrants’ rights group. Wirin was one of four attorneys evicted from the hearings (two on this day and two the following days) for addressing the committee directly. Richard Arens, HUAC counsel, asserted that the lawyers only had the right to advise clients about their constitutional rights.”

A.L. Wirin

A.L. Wirin

“At the close of the hearings, HUAC chairperson, Rep. Harold Velde(R-Illinois) stated that state bar associations should consider disbarring all four of the lawyers.””Wirin served as lawyer for the ACLU of Southern California for many years. He played a particularly important role in recruiting plaintiffs to challenge the evacuation and internment of the Japanese-Americans from the west coast during World War II. On January 23, 1934, Wirin was kidnapped and beaten by vigilantes while he was assisting farm workers in rural California.””Wirin’s  initials stood for ‘Abraham Lincoln.’ He died on February 4, 1978.”

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

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017)
  2. Lee v. Tam (oral argument: Jan. 18, 2017)
  3. Packingham v. North Carolina

Pending Petitions & Related Cases*

  1. Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Ap- peals have held such statutes unconstitutional.)
  2. Independence Institute v. FEC
  3. Bennie v. Munn
  4. Augsburg Confession
  5. Bondi v. Dana’s Railroad Supply
  6. Flytenow v. Federal Aviation Administration

Cert. Denied

  1. Armstrong v. Thompson
  2. Wolfson v. Concannon
  3. Dart v. Backpage.com
  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 

First Amendment Religious Expression Case: Cert. Denied

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.)

Free Speech Related Case: Pending 

  • Doe v. Backpage.com 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 Case: Denied 

  • 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 last Conference was on  December 2, 2016.; its next Conference is on December 9, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #135: December 7, 2016

Last Scheduled FAN, #133Slants trademark case might be decided on statutory grounds

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