FAN 139 (First Amendment News) Gov. Cuomo turns to Floyd Abrams for First Amendment Help

Gov. Cuomo has hired prominent First Amendment lawyer Floyd Abrams to defend him against a federal lawsuit challenging a new law that requires politically active non-profit organizations to publicly disclose their donors.N.Y. Daily News, Jan. 23, 2017

Seattle. Yes, it’s true: Floyd Abrams, the nation’s preeminent First Amendment lawyer and author of the forthcoming The Soul of the First Amendment is defending two government officials against a claim of a First Amendment violation.

Floyd Abrams

The lawsuit was brought by Citizens Union. It claims that a New York ethics law violates First Amendment protections of free speech. It names Gov. Cuomo and state Attorney General Eric Schneiderman as defendants.

According to the New York Daily News, Mr. Abrams is representing the Governor thought it is “unclear how much Abrams and his firm are being paid since no contract has been filed yet with the state controller’s office. A Cuomo spokesman said the details with Abram’s firm are still being worked out.”

When I asked about his involvement in the case, Mr. Abrams said:  “I have long thought — and so has the Supreme Court — that more disclosure of who is spending significant sums of money to persuade the public who to vote for and how to view  public policy issues is not only not violative of the First Amendment but significantly pro-First Amendment in its impact. There are, to be sure,  exceptions to this when the identification of speakers will lead to threats, harassment or the like  (and such an exception is in the New York law) but as a general proposition more sunlight about such matters is not only good policy but consistent with well established First Amendment law.”

This from Professor Richard Hasen: “I think Floyd Abrams recognizes that campaign finance disclosure serves a valuable democratic function in helping voters make informed decisions in elections. I am pleased he has taken on this case.”  (See also Richard Hasen, Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements, Election Law Blog, Jan. 4, 2017)

The N.Y. Ethics Law

As set out in the Plaintiffs’ complaint, Section 172-e of the New York ethics law ‘mandates the public disclosure of all donors and donations to a 501(c)(3) in excess of $2,500 whenever that organization makes an ‘in-kind donation” of over $2,500 to certain 501(c)(4)s engaged in lobbying activity. N.Y. Exec. Law § 172-e[1][a], [d], [2]. An ‘in- kind donation’ is defined as ‘donations of staff, staff time, personnel, offices, office supplies, financial support of any kind or any other resources.’ N.Y. Exec. Law § 172-e[1][b].

Randy M. Mastro, lead counsel for Plaintiffs

“Section 172-e requires disclosure reports to be filed with the Department of Law within thirty days of the close of a reporting period. The disclosures must include:

(i) the name and address of the covered entity that made the in‐kind donation;
(ii) the name and address of the recipient entity that received or benefitted from the in‐kind donation;

(iii) the names of any persons who exert operational or managerial control over the covered entity. The disclosures required by this paragraph shall include the name of at least one natural person;

(iv) the date the in‐kind donation was made by the covered entity;

(v) any donation in excess of two thousand five hundred dollars to the covered entity during the relevant reporting period including the identity of the donor of any such donation; and

(vi) the date of any such donation to a covered entity.”

“Section 172-f requires 501(c)(4)s to disclose publicly donations over $1,000—including the donor’s identity and the amount of the donation—whenever the organization makes ‘expenditures for covered communications’ totaling over $10,000 in a calendar year. N.Y. Exec. Law § 172-f[1][a], [2]-[3].”

First Amendment Challenges

In Citizens Union v. Governor of New York the Plaintiffs make the following First Amendment arguments:

  • “Nonprofit Organizations Like Citizens Union And Citizens Union Foundation Depend On Donors To Function, Including Donors Who Choose To Give Anonymously To Support Speech On Matters Of Public Concern.”
  • “On Their Face, Sections 172-e And 172-f Substantially Burden The Rights Of Organizations Like Plaintiffs And Of Their Donors.”

“In order to avoid harsh penalties, including fines and revocation of its registration, under Section 172-e, Citizens Union Foundation and similarly situated 501(c)(3)s must disclose publicly all donations over $2,500 whenever they make an in-kind donation of more than $2,500 to certain 501(c)(4)s engaged in lobbying activity. Not only does this requirement directly chill speech by 501(c)(3)s, but it imposes significant compliance costs on covered organizations. . . . Section 172-e simply has nothing to do with protecting against quid pro quo corruption or promoting transparency in campaign finance. These disclosure requirements thus reach much farther than the disclosure requirements upheld in Citizens United, which were targeted at “electioneering communications” that were related to electoral politics.”

“Requiring these disclosures does not meaningfully advance the government’s interest in preventing quid pro quo arrangements with public officials, promoting transparency in campaign finance, or rooting out corruption. Unlike those upheld in Citizens United, the disclosures here are not linked with an informational interest in ‘election-related’ financing that may justify disclosures pertaining to electioneering communications.”

 “The law seems to be a solution in search of a problem and mainly serves to curtail the work of organizations like ours which seek to promote the public good,” said Dick Dadey, Executive Director. 

Plaintiffs’ Counsel 

Three Gibson Dunn & Crutcher lawyers from its New York offices are representing the Plaintiffs. They are:

Related: FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU, Aug. 31, 2016

Commentaries on the “Slants” Case

  1. Ronald Abrams, A Review of The Supreme Court’s Questions And Comments In ‘Slants, Forbes, Jan. 20, 2017
  2. Ken Jost, Justices Set to OK Offensive Trademarks?, Jost on Justice, Jan. 23, 2017
  3. Amy Howe, Argument analysis: Justices skeptical of federal bar on disparaging trademarks, SCOTUSblog, Jan. 19, 2017
  4. Steven Mazie, Free expression vs offensive speech at the Supreme Court, The Economist, Jan. 19, 2017
  5. Cristian Farias, Who’s To Say The Word ‘Slants’ Offends Asians? The Supreme Court, That’s Who, Huffington Post, Jan. 19, 2017
  6. Adam Liptak, Justices Appear Willing to Protect Offensive Trademarks, New York Times, Jan. 18, 2017
  7. Tony Mauro, In ‘Slants’ Case, Justices Skeptical of Ban on Disparaging Trademarks, National Law Journal, Jan. 18, 2017
  8. Robert Barnes, Can disparaging trademarks be denied? The Supreme Court is skeptical, Washington Post, Jan. 18, 2017
  9. Ruthann Robson, Court Hears Oral Arguments in Lee v. Tam, First Amendment Challenge to disparaging trademark ban, Constitutional Law Prof Blog, Jan. 18, 2017

 John Shu, Lee v. Tam: “Disparaging” Trademarks & the First Amendment, The Federalist Society, Jan. 17, 2017 (YouTube)

FIRE Celebrates 50th Anniversary of ‘Keyishian’ Decision

This from a FIRE news item: Yesterday marked “50 years since the landmark U.S. Supreme Court ruling in Keyishian v. Board of Regents, 385 U.S. 589 (1967). The anniversary of this foundational First Amendment academic freedom decision serves as a reminder that professors’ freedom to teach, research, and publicly speak must always be safeguarded from government retribution.”

“The University of Buffalo, as it was then known, became a member of the State University of New York system (SUNY) in 1962. With this transition, the university became subject to New York State Education Law requirements, including Sections 3021 and 3022 of the Education Law and Section 105, Subdivision 3 of the Civil Service Law. Section 3022, known as the Feinberg Certificate, required all employees to certify that they were not members of the Communist party and to notify the SUNY president if they had previously been members. Section 3021 and Section 105 mandated the termination of employees for “treasonable or seditious” utterances or actions.”

Harry Keyishian (circa 1967)

“Harry Keyishian, an English instructor at the transitioning university, refused to sign the certificate. When his contract with the school was not renewed, he filed suit with four co-plaintiffs, alleging First Amendment violations.”

“On appeal, the Supreme Court of the United States considered two questions: whether the SUNY Regents could require their employees to sign the certificate posed by Section 3022, and whether Sections 3021 and 105 infringed on the plaintiffs’ First Amendment right to academic freedom. In a 5-4 decision authored by Justice William Brennan, the Court ruled in favor of Keyishian and his co-plaintiffs, finding the provisions unconstitutionally vague, in violation of the First Amendment.”

“Considering the first question before the Court, Brennan wrote that mere membership in a subversive group alone could not be the basis of termination from public university employment, and that Section 3022 violated employees’ First Amendment speech and assembly rights.”

“On the second question, the Court found requirements for removing employees for “treasonable or seditious utterances or actions” vague and overbroad, and as such, likely to chill constitutionally protected speech.”

“Fifty years later, key lessons from Keyishian remain important today.”

“Keyishian makes clear that academic freedom is not only essential to the health of higher education, but to the health of our entire nation. Brennan wrote:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.” [Internal citations omitted.]

“Keyishian, then, emphasizes just how much is at stake when academic freedom is threatened—the very “marketplace of ideas” in our country that the First Amendment seeks to create and protect.”

“Additionally, Keyishian demonstrates that vague prohibitions chilling speech are just as dangerous to academic freedom as affirmative loyalty oaths. Calling the New York statutes a “regulatory maze,” the Court explained:

When one must guess what conduct or utterance may lose him his position, one necessarily will “steer far wider of the unlawful zone . . . .” For “[t]he threat of sanctions may deter . . . almost as potently as the actual application of sanctions.” The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed. [Internal citations omitted.]

“Vague regulations that have a chilling effect upon free speech must, therefore, be resisted with the same vigor as regulations that affirmatively proscribe protected speech.”

“Harry Keyishian’s example reminds us that the protection of academic freedom depends on the vigilance and strength of individuals ready to recognize and resist regulations that threaten it. When discussing the origin of the suit in an interview with Academe Blog, Keyishian explained that while “[p]retty much everybody opposed the idea of the certificate,” he and his co-plaintiffs were more determined, saying: “We were, I guess, just more stubborn than the rest and decided, for our own reasons, to see the matter through.”

“We at FIRE are inspired by the determination of Keyishian and his co-plaintiffs, and likewise commit to seeing attacks on academic freedom through, to just ends.”

Forthcoming Books

  1. Andrew Kenyon & Andrew Scott, editors, Positive Free Speech: Rationales, Methods and Implications (Hart Publishing, September 7, 2017)
  2. Robert Spencer, The Complete Infidel’s Guide to Free Speech (Regnery Publishing, July 24, 2017)
  3. Elizabeth C. Childs, Suspended License: Censorship and the Visual Arts (University of Washington Press, September 24, 2017)

New & Notable Blog Posts

  1. Ruthann Robson, Daily Read: Defamation Complaint Against the President, Constitutional Law Prof Blog, Jan. 20, 2017
  2. Eugene Volokh, No, Madonna’s ‘I have thought an awful lot about blowing up the White House’ isn’t a threat of violence, The Volokh Conspiracy, Jan. 21, 2017

News, Editorials, Op-eds & Blog Posts 

Ronald Collins, Hate speech is vile — and protected, Seattle Times, Jan. 19, 2017

  1. “Marine Veteran,” Arizona Republicans Take On First Amendment In Bid To Battle PC Culture On Campus, American Military News, Jan. 23, 2017
  2. Lisa Hagen, Spicer on protests: Trump has ‘healthy respect for the First Amendment,’ The Hill, Jan. 23, 2017
  3. Sol Wachtler, Is the First Amendment back on trial?, Newsday, Jan. 22, 2017
  4. Laurel Rosenhall, Legislature runs afoul of First Amendment advocates, San Francisco Chronicle, Jan. 22, 2017
  5. Gene Policinski, 1st Amendment: An Inaugural Day ‘open letter’ — to the rest of us, Hays Post, Jan. 21, 2017
  6. Steven D. Schwinn, D.C. Circuit Rejects Free Speech Claim of Inauguration Protest Group, Constitutional Law Prof Blog, Jan. 17, 2017

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

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017)(transcript here)
  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. Augsburg Confession
  4. Bondi v. Dana’s Railroad Supply

Cert. Denied

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

  • 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 January 19, 2017; the next conference is on February 17, 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, #140: February 1, 2017

Last Scheduled FAN, #138Forthcoming book: “Unsafe Space: The Crisis of Free Speech on Campus”

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