FAN 137 (First Amendment News) removes adult content due to government censorship — vows to fight First Amendment battles

Seattle. This from a press release from

As the direct result of unconstitutional government censorship, has removed its Adult content section from the highly popular classified website, effective immediately. For years, the legal system protecting freedom of speech prevailed, but new government tactics, including pressuring credit card companies to cease doing business with Backpage, have left the company with no other choice but to remove the content in the United States.

As federal appeals court Judge Richard Posner has described, the goal is either to “suffocate” Backpage out of existence or use the awesome powers of the government to force Backpage to follow in the footsteps of Craigslist and abandon its Adult advertising section. Judge Posner described such tactics as “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.” [ v. Dart, 7th Cir., 2015]

“It’s a sad day for America’s children victimized by prostitution,” said Dr. Lois Lee, Founder and President, Children of the Night, a leading national hotline and shelter program for victims of sex trafficking based in Los Angeles. “ was a critical investigative tool depended on by America’s vice detectives and agents in the field to locate and recover missing children and to arrest and successfully prosecute the pimps who prostitute children.” She added, “The ability to search for and track potentially exploited children on a website and have the website bend over backwards to help and cooperate with police the way Backpage did was totally unique. It not only made law enforcement’s job easier, it made them much more effective at rescuing kids and convicting pimps.” was created thirteen years ago by Jim Larkin and Michael Lacey, through their newspaper company, New Times Media, to compete with Craigslist, the nation’s largest online classified ad platform. Larkin and Lacey were pioneers in independent journalism, establishing Village Voice Media in 1970 to provide alternative news coverage of the Vietnam war and later served as editor and publisher of twenty weekly newspapers.

As The Center for Democracy and Technology and the Electronic Frontier Foundation have observed, the Senate subcommittee has engaged in an “invasive, burdensome inquiry into’s editorial practices [that] creates an intense chilling effect, not only for Backpage but for any website operator seeking to define their own editorial viewpoint and moderation procedures for the third-party content they host.” [amicus brief below]

This will not end the fight for online freedom of speech. will continue to pursue its efforts in court to vindicate its First Amendment rights and those of other online platforms for third party expression.

 Appellants’ Reply Brief, Ferrer v. Senate Permanent Subcommittee on Investigations (D.C. Cir., oral arguments pending)

Lawyers for re Appellants’ Reply Brief:

  • Steven R. Ross & Stanley M. Brand (Akin Gump Strauss Hauer & Feld)
  • Robert D. Luskin, Stephen B. Kinnaird, & Jamie S. Gardner (Paul Hastings)
  • Robert Corn-Revere & Ronald London (Davis Wright Tremaine)

Amicus Brief on behalf of DKT Liberty Project, Cato Institute & Reason Foundation (supporting Appellant) (counsel: Jessica Ring Amunson & Joshua M. Parker (Jenner & Block))

Jessica Ring Amunson, Joshua M. Parker, Ilya Shapiro, & Manuel S. Klausner, Ferrer v. Senate Permanent Subcommittee on Investigations, Cato Institute, Nov. 22, 2016

Related links

Cert Petition: Case to Watch 

The case is is McKay v. Federspiel in which a cert. petition has just been filed in the Supreme Court.  The issues in the case are:

1. Whether a law criminalizing protected speech or conduct implies a threat to prosecute such that a pre-enforcement challenge is proper without any additional showing that enforcement is imminent.

2. Whether, absent extenuating circumstances, there is a constitutional right to make a public recording of courtroom proceedings.

Summary of Facts: the chief judges of Saginaw County, Michigan issued a joint administrative order limiting the use of electronic devices in courtrooms and court-related facilities in the Saginaw County Governmental Center. Robert McKay, a resident of neighboring Tuscola County who states that he wishes to record law enforcement officers’ and judges’ activities inside the Governmental Center, contends that the administrative order violates his federal constitutional rights.

Sixth Circuit opinion (here)

Lead counsel for Petitioner: John J. Bursch 

Andy Hoag, Federal judge: Saginaw County cellphone ban not unconstitutional; preliminary injunction denied, Michigan Live, April 18, 2014

[ht: A.L.]

Court Denies Cert. in Internet Communications Case

On Monday the Court denied cert in Flytenow, Inc. v. Federal Aviation Administration. One of the issues in the case was: whether the circuit court erred in holding that the Federal Aviation Administration could, consistent with the First Amendment, lawfully discriminate against content-based Internet communications because of the message conveyed and the means chosen by pilots to convey it.

[ht: Art Spitzer]

Public Employee: No 1-A protection for racial epithet

Brown’s First Amendment claim fails right out of the gate. Public‐employee speech is subject to a special set of rules for First Amendment purposes. employee spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos (2006); see Pickering v. Bd. of Educ. (1968). If the speaker is not wearing her hat “as a citizen,” or if she is not speaking “on a matter of public concern,” then the First Amendment does not protect her. — Chief Judge Dianne P. Wood

This from an article by Keith Hill in the National Law Review (Jan. 7, 2017):

Keith Hill

In Brown v. Chicago Bd. of Educ., 824 F.3d 713 (7th Cir. 2016), the 7th Circuit held that a public school teacher, who was suspended for using a racial epithet in front of his students, was not afforded First Amendmentprotection because his speech was made pursuant to his employment duties.

“Brown involved a sixth grade teacher who, after catching his students passing a note in class containing music lyrics with a racial slur, engaged the class in ‘a well-intentioned but poorly executed discussion of why such words are hurtful and must not be used.” The school board suspended the teacher under its “written policy that forbids teachers from using racial epithets in front of students, no matter what the purpose.'”

“In finding that the teacher’s suspension did not implicate his First Amendment rights, the 7th Circuit relied on the Supreme Court’s decision in Garcetti v. Ceballos (2006). . . .”

Recent Event: Storms, Strossen & Collins

University of Washington: “Speech and Counter Speech — Rights & Responsibilities”

  • Nadine Strossen, John Marshall Harlan II Professor of Law at New York Law School Immediate Past President, American Civil Liberties Union (1991–2008)
  • Michelle Storms, Deputy Director at ACLU-WA
  • Ronald Collins , Harold S. Shefelman Scholar, at the UW School of Law

Topics include:

  • What does the First Amendment mean in the context of a public university?
  • How can we promote equality, diversity and civility consistent with protecting free speech?

See also: Ana Mari Cauce, The test of free expression is protecting speech that offends, University of Washington, Dec. 19, 2016 (“the right to free speech and expression is broad and allows for speech that is offensive and that most of us would consider disrespectful, and even sexist or racist.  As a public university committed to the free exchange of ideas and free expression, we are obligated to uphold this right.”)

Radio Television Digital News Foundation’s 2017 First Amendment Awards

This from Cameron Vigliano writing for TV Technology (Jan. 4, 2017):

  • “Vice President and General Manager of ABC News Radio Steve Jones will receive the First Amendment Service Award for his management and behind-the-scenes work at the network.”
  • “Hubbard Broadcasting’s CEO Stanley Hubbard will be awarded the First Amendment Leadership Award for his significant contribution to the protection of the First Amendment and freedom of the press.”
  • “NPR News’ legal affairs correspondent Nina Totenberg will take home the RTDNF Lifetime Achievement Award.”
  • “Bill Whitaker of CBS News will be honored with the Leonard Zeidenberg First Amendment Award for his contributions to protecting press freedoms through his journalism career as a television broadcaster.”
  • “Taking the honor for The RTDNF’s First Amendment Award is Mark Halperin and John Heilemann, co-managing editors of Bloomberg Politics and hosts of the news analysis show “With All Due Respect,” which airs on Bloomberg TV.”

 The awards ceremony will be held in March at the Grand Hyatt in Washington.

7 Forthcoming Books

Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court’s First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom.

This timely book shows how the Roberts Court’s free speech decisions embody a version of expressive freedom that Professor Magarian calls “managed speech.” Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts’ ascent in 2005 and Justice Antonin Scalia’s death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate.

Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: “dynamic diversity.” A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.

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.


New & Forthcoming Scholarly Articles

  1. Josh Blackman, Reply: A Pause for State Courts Considering Model Rule 8.4(G) The First Amendment and ‘Conduct Related to the Practice of LawGeorgetown Journal of Legal Ethics (2017)
  2. Emil Nästegård, Credit Rating Agencies and the First Amendment Defence in the US, SSRN (Jan. 2017)
  3. Phillip Lee, Expanding the Schoolhouse Gate: Public Schools (K-12) and the Regulation of Cyberbullying, Utah Law Review (2016)

News, Editorials, Op-eds & Blog Posts

Jameel Jaffer

Jameel Jaffer, What is the Fate of the First Amendment in the Digital Age, The Nation, Jan. 4, 2017

  1. Jacob Gershman, Steps up First Amendment Fight With California Over Law Shielding Actor Birth Dates, Wall St. J., Jan. 6, 2017
  2. Karen Antonacci, Longmont medians part of First Amendment panhandling debate, Times-Call, Jan. 6, 2017
  3. Deborah J. LaFetra, Exclusive representation violates the First Amendment, Liberty Blog, Jan. 6, 2017
  4. Jeff Jacoby, In its views on First Amendment, LGBT movement is not a monolith, Boston Globe, Jan. 3, 2017
  5. Wen Fa, High Court Should Hear First Amendment Case Against Bullying Bureaucrats, Daily Caller, Jan. 4, 2017
  6. Jack Fowler, Is the First Amendment at a Crisis Point?, The National Review, Jan. 2, 2017
  7. Editorial, DC Court of Appeals’ global warming decision threatens First Amendment, New York Post, Jan. 1, 2017
  8. Josh Blackman, The Freedom of Speech at the University of Oregon, Josh Blackman’s Blog, Dec. 22, 2017

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 (oral argument: Feb. 27. 2017)

Pending Appeals & Petitions & Related Cases*

  1. Republican Party of Louisiana v. FEC
  2. Independence Institute v. FEC
  3. Bennie v. Munn
  4. Augsburg Confession
  5. Bondi v. Dana’s Railroad Supply

Cert. Denied

  1. Flytenow v. Federal Aviation Administration
  2. Armstrong v. Thompson
  3. Wolfson v. Concannon
  4. Dart v.
  5. NCAA v. O’Bannon
  6. Mech v. School Board of Palm Beach County
  7. Williams v. Coalition for Secular Government 
  8. Pro-Football v. Blackhorse 
  9. 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.)

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. 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 January 6, 2017. The next Conferences are on January 13, 2017 and   January 19, 2017.

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, #138: January 18, 2017

Last Scheduled FAN, #1362016: The Year in Review, including “the best of”

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