FAN 144 (First Amendment News) Cert Petition: Nursing student challenges expulsion for Facebook comments
Seattle. The case is Keefe v. Adams. It involves Craig Keefe. According to a story by David Hanners in the Twin Cities Pioneer Press, Mr. Keefe was a “semester away from finishing his studies to be a registered nurse. Like a lot of college students — like a lot of Americans — he was on the social networking site Facebook. But in December, officials at Brainerd’s Central Lakes College took exception to some of Keefe’s posts on his private Facebook page and kicked him out of school.Keefe says he wasn’t told what the problems were with his posts, nor was he told why or how anything he did violated school policy. Angered, he has taken his complaint to court.”
In a cert. petition recently filed with the Supreme Court, the issues raised were:
- May a public community college use professional conduct codes to expel a nursing student from a professional degree program, without regard to First Amendment limits, for comments unrelated to the school’s curriculum posted to the student’s personal Facebook page?
- May a public community college expel a student for disciplinary infractions using less rigorous due process procedures applicable to decisions involving curricular speech?
The brief, filed by Robert-Corn-Revere (with Ronald London & Lisa Zycherman), begins: “This case raises the question of whether the First Amendment permits a public college to expel a student from a professional degree program under nebulous standards, such as ‘maintaining professional boundaries,’ for posting non-curricular com- ments on his Facebook page. A divided panel of the Eighth Circuit said that it could, even though the student’s speech was not part of any coursework or clinical requirement.In reaching this conclusion, the panel expanded the limits of the ‘professional speech doctrine,’ which permits regulation only where the speech is directly related to specific professional duties.”
“It also exacerbated existing circuit splits that seek to define when off-campus speech may be subject to regulation, when speech may be considered to be ‘school-sponsored,’ and when adult college students may be subjected to the lesser First Amendment protections often provided elementary and secondary school children”
“In the process, the panel approved more lax due process procedures under the guise of a curricular expulsion, when the college instead was imposing a disciplinary sanction. The decision ignored this Court’s precedents, which require more formal due process procedures in the case of disciplinary sanctions, and created further disarray among the circuits on this issue. Review by this Court is necessary to clarify the First Amendment and due process principles involved.”
→ The Petitioner urges the Court to review the case for the following reasons:
I. This Court’s Review is Essential to Clarify First Amendment Limits of Applying Professional Standards to Restrict Non-Curricular Speech by Public College Students
A. The First Amendment Protects College Students and Others Subject to Professional Codes of Conduct
B. The Eighth Circuit Blurred the Line Between Curricular and Non-Curricular Speech,Widening a Rift Among the Circuits
C. Review by This Court is Imperative
II. This Court’s Review is Essential to Clarify Due Process for Disciplinary Sanctions on Non-Curricular Speech ata Public College.
SCOTUSblog: Justices skeptical about social media restrictions for sex offenders
This from Amy Howe over at SCOTUSblog: “At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were ‘incredibly important parts’ of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even ‘structure their civil community life’ around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from ‘a very large part of the marketplace in ideas.’ Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.”
“. . . . And perhaps most critically for the state, Justice Anthony Kennedy was unconvinced by the state’s efforts to rely on a 1992 case in which the justices upheld a Tennessee law that imposed a ban on soliciting votes or distributing campaign materials within 100 feet of a polling place. The court in that case ruled that the ban served the state’s interest in protecting its citizens’ right to vote freely, but Kennedy today dismissed the Tennessee ban as “not analogous” to North Carolina’s. If that is the best you have, he seemed to be saying to Montgomery, ‘I think you lose.’ If Kennedy is indeed on board, then Packingham seems to have five votes in favor of striking down the North Carolina law.”
→ Transcript of oral arguments here.
→ See also, Ruthann Robson, Court Hears Oral Argument on Sex Offenders’ First Amendment Right to Access Social Media, Constitutional Law Prof Blog, Feb. 27, 2017
9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others
This from Just Security: Recently, “the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism—including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country.” Here is the lineup (go to link for comments):
- Robert Corn-Revere (Davis Wright Tremaine)
- Lucy Dalglish (U. MD. Journalism Dept.)
- Arthur Eisenberg (NYCLU)
- Jameel Jaffer (Knight First Amendment Institute, Columbia)
- Dawn Johnsen (Indiana U. Law School)
- Lee Levine (Levine Sullivan Koch & Schulz)
- Burt Neuborne (NYU Law School)
- David Schulz (Media Freedom & Information Access Clinic, Yale Law School)
- Laurence H. Tribe (Harvard Law School)
→ See video clip: Sean Spicer on Politico’s Playbook, Dec. 2016
NYU Center for the Humanities hosts event on Trump & First Amendment
February 22, 2017: The panelists discussed the history of freedom of speech and what the new administration means for First Amendment rights.
“The election of Donald Trump has come with a broad attack on the press and on the freedom of political expression. What are likely to be the challenges to the First Amendment going forward, and how does America’s history of robust dissent support the protection of speech and press today?”
The panelists were:
- Floyd Abrams, Renowned First Amendment Attorney, Cahill Gordon & Reindel LLP; Author, The Soul of the First Amendment (forthcoming in April)
- Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; President of the American Civil Liberties Union, 1991-2008; Author, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights
- Stephen Solomon, Associate Professor of Journalism, Arthur L. Carter Journalism Institute, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech
- Thomas Healy, Professor of Law, Seton Hall Law School; Author, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America
More on Trump & the First Amendment
You know, they always bring up the First Amendment. I love the First Amendment; nobody loves the First Amendment better than me. — Donald Trump
- Noah Feldman, Trump’s Love-Hate Relationship With the First Amendment, Bloomberg View, Feb. 27, 2017
- Debra Cassens Weiss, Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filed, ABAJ, Feb. 27, 2017
- Jonathan Kraut, Trump violates First Amendment, The Signal, Feb. 27, 2017
- Sue Lempert, Fake news and the First Amendment, The Daily Journal, Feb. 27, 2017
- Nate Madden, Trump’s Fighting the Media, not the First Amendment, Conservative Review, Feb. 27, 2017
- Trump Thinks First Amendment is a Joke, The Young Turks, Feb. 24, 2017 (YouTube)
The Reporters Committee for Freedom of the Press filed an amicus brief opposing compelled testimony of John Sepulvado, a former reporter with Oregon Public Broadcasting (OPB), which was authorized by Attorney General Jeff Sessions in his first week in office. Sepulvado had interviewed Ryan Bundy, one of the Malheur Natural Wildlife Refuge occupants, about the purpose of the occupation in January 2016.
Though there had been earlier contacts from prosecutors, a subpoena was finally served on Sepulvado last week. The subpoena does not limit the scope of the requested testimony. The government seeks to have Sepulvado authenticate his interview of Bundy, which would also open Sepulvado up to vigorous cross-examination by the defendants, all of whom oppose the subpoena.
Sepulvado’s attorney filed a motion to quash the subpoena this week. In its brief in support of that effort, the Reporters Committee noted the jurisdiction’s long history of maintaining the confidentiality of journalists’ work product and the importance of an independent press to an informed public. The brief highlights the chilling effect that compelled testimony of confidential newsgathering information would have on future sources, and how that would affect deeply-researched stories.
Michigan State to Ban White Boards From Dorms
“Students skeptical that eliminating ubiquitous dry-erase boards will solve bullying or vandalism”
See story by Douglas Belkin, Wall Street Journal, Feb. 25, 2017: “The roiling debate over free speech on college campuses has claimed a new victim: the white message boards on dorm-room doors that students typically use to tell each other they are at the library—or taking a nap.”
→ See also Holly Fournier, MSU banning whiteboards due to bullying, Detroit News, Feb. 20, 2017: “Whiteboards on dorm room doors have evolved from valuable tools of communication to ready-made vehicles for bullying, according to Michigan State University officials.”
“As a result, the university will ban the whiteboards from students’ doors this fall, in an effort to cut down on the number of negative, anonymous messages left outside dorm rooms.”
FIRE: The 10 Worst Colleges for Free Speech: 2017
- Northern Michigan University
- California State University, Los Angeles
- Fordham University
- University of Oregon
- California State University, Long Beach
- Harvard University
- University of South Carolina
- Williams College
- Georgetown University
- DePaul University
Video: Jim Newton interviews Eugene Volokh on Judge Gorsuch & First Amendment
This is the begaining of the fourth year of the First Amendment Salon, the first one of 2017 being hosted by the Los Angeles offices of Davis Wright Tremaine.
Thanks to Jim and Eugene for agreeing to do this on such short notice.
→ A link to the video of the salon can be found here.
Coming: Next First Amendment Salon — Liptak to interview Abrams on the Soul of the First Amendment
April, 5, 2017, Yale Law School (12:00 -1:00 pm, rm. 120)
→ A Conversation with Floyd Abrams on The Soul of the First Amendment (Yale University Press, 2017)
In an interview with Adam Liptak of the New York Times, Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, will discuss the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world.
10 New or Forthcoming Books
- Gavan Titley, et al., eds, After Charlie Hebdo: Politics, Media and Free Speech (Zed Books, November 15, 2017)
- Zeke Jarvis, Silenced in the Library: Banned Books in America (Greenwood, August 31, 2017)
- Elizabeth Childs, Suspended License: Censorship and the Visual Arts (University of Washington Press, August 13, 2017)
- Jennifer Downey, Public Library Collections in the Balance: Censorship, Inclusivity, and Truth Libraries Unlimited, July 31, 2017)
- Andrew McStay, Privacy and the Media (SAGE Publications, May 15, 2017)
- Committee to Protect Journalists, Attacks on the Press: The New Face of Censorship (Bloomberg Press, April 24, 2017)
- Alex Brown, Hate Speech Law: A Philosophical Examination (Routledge, April 22, 2017)
- Billy Hallowell, Fault Line: How a Seismic Shift in Culture Is Threatening Free Speech and Shaping the Next Generation (Frontline, March 7, 2017)
- David van Mill, Free Speech and the State: An Unprincipled Approach (Palgrave Macmillan, 2017)
- Brad Snyder, The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (Oxford University Press, 2017) (see below)
Abstract: In 1912, a group of ambitious young men, including future Supreme Court justice Felix Frankfurter and future journalistic giant Walter Lippmann, became disillusioned by the sluggish progress of change in the Taft Administration. The individuals started to band together informally, joined initially by their enthusiasm for Theodore Roosevelt’s Bull Moose campaign. They self-mockingly called the 19th Street row house in which they congregated the “House of Truth,” playing off the lively dinner discussions with frequent guest (and neighbor) Oliver Wendell Holmes, Jr. about life’s verities. Lippmann and Frankfurter were house-mates, and their frequent guests included not merely Holmes but Louis Brandeis, Herbert Hoover, Herbert Croly – founder of the New Republic – and the sculptor (and sometime Klansman) Gutzon Borglum, later the creator of the Mount Rushmore monument. . . .
New & Forthcoming Scholarly Articles
- John Inazu, Unlawful Assembly as Social Control, UCLA L. Rev. (2017)
Abstract: Public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary understandings of unlawful assembly cede too much discretion to law enforcement by neglecting earlier statutory and common law elements that once constrained liability. Current laws also ignore important First Amendment norms intended to provide “breathing space” for expressive activity. In doing so, these laws fall short of the aspirations of the First Amendment by stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start by reclaiming a more measured approach to unlawful assembly that recognizes both constitutional and common sense limitations.
- Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anti-Classificatory First Amendment, Supreme Court Review (forthcoming, 2017)
Abstract: The distinction between content-based and content-neutral regulations of speech is one of the most important in First Amendment law. Despite its importance, however, the Court has had trouble defining what it means for a law to be content-based. Instead, for over thirty years, the Court has vacillated between two definitions. In one line of cases, the Court has insisted that laws are content-based whenever they make content distinctions on their face. In another line of cases, the Court has instead insisted that laws are content-based only when they cannot be justified by a content-neutral purpose. The result has been the creation of a very complicated, often incoherent, body of law.
Two terms ago, in Reed v. Town of Gilbert, Arizona, the Court attempted to bring some clarity to this messy area of First Amendment jurisprudence when it held that laws that employ content distinctions are always content-based, regardless of the purposes they serve. The decision gives lower courts what they have long been missing: clear guidance on what to do when faced with an allegedly discriminatory speech regulation. But it also makes it considerably harder to defend laws that make facial content distinctions against constitutional challenge than was true in the past. Reed thus represents a significant, deregulatory shift in First Amendment doctrine.
This Article explores this shift and its normative implications. It does so by means of an analogy to the Court’s equal protection jurisprudence, and specifically its case law dealing with race discrimination. As the Article demonstrates, the shift that Reed enacts in First Amendment law resembles in many respects the shift that occurred several decades ago in equal protection law, when the Court squarely embraced what scholars have described as an anti-classificatory test of race discrimination and insisted that all laws that employ racial distinctions are presumptively invalid, no matter the purposes the government invokes to justify them. Reed similarly insists that all laws that employ content distinctions are presumptively invalid, no matter the purposes the government invokes to justify them. It announces what we might call an anti-classificatory test of content discrimination.
The Article argues that, whatever the merits of an anti-classificatory approach in the equal protection context, such an approach is singularly inappropriate in First Amendment cases, at least those dealing with non-viewpoint based laws. This is because laws that make content distinctions play a pervasive, even important, role in the regulation of both public and private life. A rule that treats as presumptively unconstitutional all facially content-based laws therefore threatens to invalidate many entirely constitutional laws. It imposes significant costs on the regulatory power of the government—costs that can only be justified if there is no less costly means of protecting speakers against discriminatory state actions. As this Article shows, there are in fact less costly alternatives to the test of content-based lawmaking that Reed announced.
New & Notable Blog Posts
- Ruthann Robson, Federal Judge Enjoins California AB1687 Prohibiting Publication of Entertainers’ Ages, Constitutional Law Prof Blog, Feb. 22, 2017
- Eugene Volokh, Blasphemy prosecution in Denmark for alleged Koran-burning, The Volokh Conspiracy, Feb. 23, 2017
News, Editorials, Op-Eds & Blog Posts
- Amazon Is Convinced Alexa Has First Amendment Rights, Futurism, Feb. 27, 2017
- Gary Abernthy, 1st Amendment stronger than ever, The Times-Gazette, Feb. 27, 2017
→ Howard Baker Center for Public Policy hosts First Amendment Panel, University of Tennessee, Feb. 27, 2017
- Jeffrey Rosen
- Bonnie Ownley
- Britany Moore
- Barry Hawkins
- David Reidy
- Mellissa Shivers
→ Lawmaker speaks out against legislation targeting protesters, Fox News, Feb. 25, 2017
Today in First Amendment History
- 1950: Gov. Earl Warren Opposes University of California Loyalty Oath (Today in Civil Liberties History)
The Court’s 2016-2017 First Amendment Free Expression Docket
- Expressions Hair Design v. Schneiderman (transcript here)
- Lee v. Tam (oral argument: Jan. 18, 2017) (transcript here)
- Packingham v. North Carolina (transcript here)
Pending Appeals & Petitions & Related Cases*
- 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.)
- Independence Institute v. FEC (affirmed)
- 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.)
* 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, #145: March 8, 2017
Last Scheduled FAN, #143: The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch