FAN 143 (First Amendment News) The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch
Vancouver, Canada. Neil Gorsuch clerked for Justice Anthony Kennedy (earlier for Justice Byron White) during the 1993-1994 Court Term.
In that Term the Court decided Turner Broadcasting System, Inc. v. FCC (June 27, 1994). Justice Kennedy wrote the majority opinion in Turner. The issue in Turner was whether the Cable Television Consumer Protection and Competition Act’s “must carry” rules violated the First Amendment. On that score, Justice Kennedy’s opinion stressed, among other things, that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Thus, “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”
Of course, we do not know what, if any, involvement young Gorsuch might have had in the case as one of Justice Kennedy’s law clerks. What we do know, however, is that dating back to his college days at Columbia, Neil Gorsuch had an abiding interest in the First Amendment. (Professor Eugene Volokh clerked at the Court that same Term; he worked for Justice Sandra Day O’Connor.)
- In a 1994 law review article, Professors Monroe Price and Donald Hawthorne wrote: “Driven by its fixation on content-neutrality, the Turner Broadcasting Court, far from recognizing the importance of the distinction between commercial and non-commercial broadcasters, deemed it immaterial and practically non-existent. . . . We suggest that Justice Kennedy’s rigid doctrinal approach can potentially endanger all substantive government regulation of the electrnic media, especially measures designed to aid non-commercial programmers.”
- “The Court in Turner,” wrote Henry Geller, “determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems . . . come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O’Brien standard when the regulation is content-neutral.”
- Robert Corn-Revere, who wrote on the case in 1994, noted that the “debate in Turner Broadcasting regarding the applicable First Amendment standard for cable television brought to a head an ongoing dispute of the past two decades.” Analyzing the opinion, he added that Turner “did not end the debate, [but] may mark a judicial shift toward a more traditionalist approach to electronic means of communication.” That shift came a few years later in United States v. Playboy Entertainment Group, Inc., which Corn-Revere argued. The Turner case formed a key part of Playboy’s opposition to the government’s claim that broadcast indecency standards should be applied to cable. The Court agreed with Playboy’s position and struck down the law (Section 505 of the Telecommunications Act of 1996), focusing on the technological difference “between cable television and the broadcasting media, which is the point on which this case turns.”
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→ See also: FAN, #141: Judge Neil Gorsuch — the Scholarly First Amendment Jurist
→ Alex J. Harris, who clerked for Judge Gorsuch on the 10th Circuit, is now clerking for Justice Kemmedy.
Senate Judiciary Committee Members
The Senate Judiciary Committee’s hearings on Judge Gorsuch are set for Monday, March 20th. Senator Chuck Grassley (R-Iowa) chairs the Committee. Those on the committee are:
Republicans (11): Orrin G. Hatch, Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Feff Flake, Mike Crapo, Tom Tills, & John Kennedy.
Democrats (9): Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher A. Coons, Richard Blumenthal & Mazie Hirono
Tomorrow in LA: First Amendment Salon on Judge Gorsuch & the First Amendment
It will the twelfth First Amendment Salon and the first one of 2017; it will address the topic of Judge Neil Gorsuch and freedom of expression. The salon dialoge will feature Jim Newton (acclaimed author & editor, editorial page, L.A. Times) interviewing Eugene Volokh (noted First Amendment scholar and Gary T. Schwartz Distinguished Professor of Law, UCLA). Kelli Sager (First Amendment specialist & partner, Davis Wright Tremaine) will introduce the discussants.
Tomorrow’s salon will take place at the Los Angeles offices of Davis Wright Tremaine. As always, the salon is co-hosted by Floyd Abrams Institute for Freedom of Expression at Yale Law School.
Live webcasts will be to the D.C. and New York offices of Davis Wright Tremaine with the video of the event to be posted soon on FIRE’s online First Amendment Library (see additional links to the salons below)
Call for Proposals: FIRE’s 2017 Faculty Conference (travel, lodging & honoraria)
The Foundation for Individual Rights in Education (FIRE) invites university faculty of all disciplines to submit paper proposals for FIRE’s first-ever faculty conference, focusing on issues of American academic freedom, to be held in October 2017. We hope to attract presenters offering a variety of viewpoints on contemporary challenges to academic freedom for discussion and debate with an audience of fellow scholars. Potential discussion and paper topics include, but are not limited to:
- Changes in academic tenure and universities’ increasing reliance on contingent faculty members;
- The uncertain legal status of academic freedom;
- The changing faculty role in university governance;
- Faculty members and political speech/activity;
- The pressure to place checks on teaching and discourse, including through trigger warnings and reporting of microaggressions;
- Legislative threats to academic freedom;
- The changing corporate nature of the university;
- The debate over academic boycotts;
- Public records requests and the competing interests of transparency and academic freedom;
- Debates over the value of ideological diversity in the academic setting; and
- Political, social, and religious tensions on campus, and their potential effect on learning.
Faculty are equally encouraged to submit proposals examining their chosen topic in the context of higher education on the whole or through the lens of a particular field or discipline (e.g., humanities, social sciences, engineering/natural sciences, medicine, law, fine arts).
All authors whose proposals are selected will receive an honorarium of $3,000 for the presentation of their completed papers, in addition to compensation for travel and lodging at the conference. Each paper presentation will be accompanied by a moderated panel discussion in which invited participants will give brief responses, followed by a discussion among all attendees.
This conference is presented as part of FIRE’s Speech, Outreach, Advocacy, and Research (SOAR) project, supported by the John Templeton Foundation. We are pleased to collaborate with George Yancey, professor of sociology at the University of North Texas and director of UNT’s Institute of Christian Studies, in coordinating and presenting the conference.
The conference will be held October 5–7, 2017, at a soon-to-be-determined location in the Dallas-Fort Worth area. FIRE will update this page once the conference location has been determined.
- Deadline for proposal submission: March 31, 2017
- Accepted authors notified: May 1, 2017
- Completed papers due: September 1, 2017
Applying for the conference:
- Applicants must submit an abstract of their proposed paper and answer two brief follow-up questions.
- Applicants with completed papers may elect to attach their full text in addition to providing an abstract and answering the required questions.
- We ask that all applicants attach a current CV for reference.
Completed papers, if accepted for presentation, should be 3,000–5,000 words in length.
Further questions concerning the conference or the application may be sent via email to: firstname.lastname@example.org.
FIRE continues to expand its online First Amendment Library
FIRE continues to revise and expand its online First Amendment library. Below are some of the more recent additions to the library, of which I am the editor-in-chief:
First Amendment Overview Essays (by David Hudson unless otherwise noted)
- Chilling Effect
- Fighting Words
- Freedom of the Press (Lee Levine)
- Secondary Effects Doctrine
First Amendment Salons (video recorded salons)
- The ACLU & the First Amendment — David Cole interviewed by Jess Bravin (12-08-16)
- The First Amendment in a Revolutionary Era — Stephen Solomon & Akhil Amar, moderated by Nadine Strossen (9-09-16)
- The Centrality of the First Amendment — Geoffrey Stone & Richard Posner, moderated by Ronald Collins (05-16-16)
- Cyber Harassment & The First Amendment — Danielle Citron ^ Laura Handman, moderated by Ilya Shapiro (05-29-16)
- Reed v. Town of Gilbert & the Future of the First Amendment — Floyd Abrams & Robert Post, moderated by Linda Greenhouse (11-02-15)
- The Roberts Court & the First Amendment — Erwin Chemerinsky & Eugene Volokh, moderated by Kelli Sager (08-26-15)
→ The other non-recorded First Amendment Salons are listed here.
- Mark Tushnet, Alan Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (New York University Press, Feb. 14, 2017)
The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning.
As a legal matter, the Court’s conclusion is clearly correct, but its premises are murky, and they raise difficult questions about the possibilities and limitations of law and expression. Nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense, and sometimes do not even involve the transmission of articulable ideas. How, then, can they be treated as “speech” for constitutional purposes? What does the difficulty of that question suggest for First Amendment law and theory? And can law resolve such inquiries without relying on aesthetics, ethics, and philosophy?
Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.
Forthcoming Scholarly Article
- Ashutosh Avinash Bhagwat, When Speech is Not ‘Speech,’ Ohio State Law Journal ( forthcoming, 2017)
New & Notable Blog Posts — On guns, doctors & free speech . . . & florists
- Steven C. Schwinn, Eleventh Circuit Strikes Florida’s Ban on Doctors’ Questions About Patients’ Guns, Constitutional Law Prof Blog (Feb. 17, 2017)
- Eugene Volokh, Eleventh Circuit en banc strikes down restriction on doctors’ speech to patients about guns, The Volokh Conspiracy (Feb. 17, 2017)
- Ruthann Robson, Washington Supreme Court Denies Constitutional Claims of Florist in Same-Sex Wedding Refusal, Constitutional Law Prof Blog (Feb. 16, 2017)
- Eugene Volokh, Florists who do weddings must provide flower arrangements for same-sex weddings, The Volokh Conspiracy (Feb. 16, 2017)
YouTube — Interview with Yvette Felcara, activist who helped organize Berkeley protests
- Tucker Carlson interviews Yvette Felarca who organizes rallies to “shut down” Milo Yiannopoulos, Fox News, Feb. 13, 2017
Yvette Felcara: “In Berkeley we made sure that [Milo didn’t speak] because we were able to shut him down. . . . [Milo] should not be allowed to speak in public to spread his racist, mysognistic and homophobic lies . . . . No.”
- Berkeley Teacher In The Spotlight After Condoning Violent UC Berkeley Protest, CBS-SF, Feb. 14, 2017
- Francis Dinkelspiel, Rage against Yvette Felarca mounts after Fox News interview, Berkeleyside, Feb. 14, 2017
The Court’s 2016-2017 First Amendment Free Expression Docket
- Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017) (transcript here)
- Lee v. Tam (oral argument: Jan. 18, 2017) (transcript here)
- Packingham v. North Carolina (oral argument: Feb. 27. 2017)
Pending Appeals & Petitions & Related Cases*
- Republican Party of Louisiana v. FEC
- Independence Institute v. FEC
- Augsburg Confession
- Bondi v. Dana’s Railroad Supply
- 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 Appeals have held such statutes unconstitutional.)
- Bennie v. Munn
- Flytenow v. Federal Aviation Administration
- Armstrong v. Thompson
- Wolfson v. Concannon
- Dart v. Backpage.com
- NCAA v. O’Bannon
- Mech v. School Board of Palm Beach County
- Williams v. Coalition for Secular Government
- 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 Cases: 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)
Speech & Debate Clause: Pending
- Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).
Freedom of Information Act Petition: Pending
- Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)
→ The Court’s last Conference was on February 17, 2017; the next conference is on March 3, 2017. The Court is expected to handed down orders on from the February 17 conference on Tuesday, February 21.
* 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, #144: March 1, 2017
Last Scheduled FAN, #142: 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule