FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven

Harry Kalven (credit: Jac Stafford, Univ. of Chicago Law School)

Yale Law Professor Owen Fiss has a new book out entitled Pillars of Justice: Lawyers and the Liberal Tradition (Harvard University Press, 2017). The book consists of a series of engaging essays on some of the leading figures in contemporary law, including two from abroad (Aharon Barak  and Carlos Nino). See outline of book below.

Those interested in the First Amendment will appreciate the essay on Harry Kalven. Here are a few passages from that essay:

  • “Harry chuckled when he learned that ‘the Harvards’ — Professors Paul Freund, Arthur Sutherland, Mark De Wolfe Howe, and Ernest Brown — edited [‘uninhibited, robust and wide-open’] out of Brennan’s opinion when it was reprinted in their casebook.”
  • “In the 1950s as a very young professor, Kalven became an outspoken critic of the anti-Communist crusade led by Senator Joseph McCarthy.  In all of [Kalven’s] endeavors he never saw the First Amendment simply as an object of scholarly effort; to him it was an overarching ideal of personal and governmental behavior. Indeed, he often spoke of the First Amendment’s ‘charisma.””
  • “Justice Brennan was thoroughly familiar with Kalven’s work and often discussed it with me and Peter Strauss, his other law clerk. Now and then the Justice even mused on the proximity of his and Kalven’s views, not just on the significance of New York Times Co. v. Sullivan, but also on a range of free speech issues, from the regulation of pornography to the treatment of civil rights activists and their lawyers.”

Part I: The Struggle for Civil Rights [with essays on:]

  1. Thurgood Marshall
  2. William Brennan
  3. Joan Doar
  4. Burke Marshall

Part II: Legal Education and the Culture of Liberalism [with essays on:]

  1. Harry Kalven
  2. Eugene Rostow
  3. Arthur Leff
  4. Catherine MacKinnon
  5. Joseph Goldstein

Part III:  The Fate of the Law  [with essays on:]

  1. Carlos Nino
  2. Robert Cover
  3. Morton Horowitz
  4. Aharon Barak

Podcast — Heckler’s Veto: Interview with Heather MacDonald 

Nico Perrino Interview, The ‘heckler’s veto’ strikes Heather Mac Donald, FIRE, So to Speak, April 18, 2017

Center to Protect Free Speech

The American Legislative Exchange Council has lanuched the Center to Protect Free Speech. Here is some information on the Center.

The purpose of the Center to Protect Free Speech is to educate legislators and concerned citizens regarding the importance of free speech; promote policies that ensure the ability for all to speak freely; and equip the public with the resources necessary to preserve and protect the free speech rights of all people.

The Center  focuses on three key areas: Campus speech, donor privacy, and commercial speech.

I. Campus Speech – Freedom of speech and inquiry are crucial in higher education. Universities exist to educate students and pursue knowledge. As a “marketplace of ideas,” the university offers a forum for ideas to compete. This intellectual competition produces a level of academic rigor that is impossible to produce without freedom of speech for both students and professors. The Center will focus on three primary issues in higher education; two relating to professors/faculty and one related specifically to student speech on campus:

Academic Freedom – the right of the professor/faculty to determine the content of their instruction without fear of government intrusion, while at the same time ensure material is germane to the subject of the class.

Freedom to Research—Professors also need protection as they pursue research that may be unpopular or controversial. A common intimidation tactic of political activists is to submit Freedom Of Information Act (FOIA) requests for professors’ private correspondence.

Student Speech – One of the main pillars of a higher education is to expose oneself to the “free market of ideas.” In order to do this, students must be exposed to new ideas and feel free to challenge agreed upon “truths.”

II. Donor Privacy –the first amendment’s preservation of free speech and assembly encourages open public debate, which is essential to the proper function of American democracy; violating the privacy of individuals who choose to donate to nonprofit 501(c)(3)-designated organizations has the potential to chill free speech for fear of retribution and stifle subsequent participation in the political process.

III. Commercial Speech – It is imperative to empower consumers by protecting their right to receive truthful commercial information, and the rights of businesses to engage in the free exchange of such truthful information.

Those who oversee the Center are:

Headline: The First Amendment Gave This Neo-Nazi The Right To Be Vile — But Then He Went Too Far

The man behind the internet’s most popular neo-Nazi website, the Daily Stormer, is being sued for waging a harassment campaign against a Jewish woman in Montana. Legal experts believe he’ll have a hard time defending his actions.

Andrew Anglin

This from Mike Hayes writing in BuzzFeed:

“The right to free speech protected under the U.S. Constitution gives Americans broad allowances to say extremely bigoted, mean-spirited and disgusting things online about other people. Perhaps nobody understood just how broad hose allowances were than leading neo-Nazi blogger Andrew Anglin — who refers to Jewish people on his site as “kikes,” black people as “niggers,” gay people — or those he perceives as gay — as “faggots,” and has a whole section called The Jewish Problem.”

“Last last year, the self-proclaimed white supremacist decided to take his hateful rhetoric a step further. On December 16, Anglin authored a post on the Daily Stormer goading his readers to engage in a “troll storm.” The target: a Jewish realtor in Montana named Tanya Gersh, who Anglin was convinced was “extorting” Sherry Spencer, the mother of leading white supremacist Richard Spencer.”

“In the post, titled ‘Jews Targeting Richard Spencer’s Mother for Harassment and Extortion – TAKE ACTION!,’ Anglin writes, “Let’s Hit Em Up. Are y’all ready for an old fashioned Troll Storm? Because AYO – it’s time, fam.” The post contains a substantial amount of contact information for Gersh — who he calls a “whore” — her husband, and one of her sons, a 12-year-old who Anglin calls “a scamming kike” and ‘creepy little faggot.'”

“Anglin asks his readers to contact the Gershes and ‘make your opinions known.’ He asks them to call them, email them, tweet them, or ‘if you’re in the area, maybe you should stop by and tell her in person what you think of her actions.’ He explicitly writes that no one should do anything violent, but adds, ‘It is very important that we make them feel the kind of pressure they are making us feel.'”

“And ‘hit em up’ his followers did, which legal experts said could land Anglin in trouble in court.”

“In a lawsuit filed this week, Gersh alleges more than 700 instances of harassment directed at her and her family in connection with the “troll storm” orchestrated by Anglin. These include emails to her reading, ‘Ratfaced criminals who play with fire tend to get thrown in the oven,’ and ‘This is the goylash. You remember the last goylash, don’t you Tanya? Merry Christmas, you Christ killing Jew,’ and one that simply reads ‘Death to Tanya’ repeated in the message about 100 times. . . .”

Las Vegas corrections officer challenges department’s social media policy

Marc J. Randazza, Plaintiff’s lawyer

The case is Sabatini v. Las Vegas Metropolitan Police Department (D. Ct., Nevada, 2017). In his complaint for declaratory and injunctive relief and damages, the Plaintiff John Sabatini claims that the Las Vegas Metropolitan Police Department violated his First Amendment right to freedom of expression, as well as his due process rights when it terminated his employment based on an unconstitutionally vague social media policy.

As reported in the Las Vegas Review-Journal: “Clark County Detention Center officer John Sabatini was fired last year after the department’s internal affairs division received an anonymous complaint about his Facebook posts. He was rehired several months later after arbitration proceedings.But the employment grievance victory was not enough for Sabatini. [H]e sued the police department . . . .”

In his complaint, the plaintiff mainatins that this “is a case about the government terminating one of its employees because it disapproved of the content of his speech, and using an unconstitutionally vague policy regulating speech that affords the government unlimited discretion to punish employees when they feel like it.”

The Plaintiff also alleges that:

  • “The [Department’s] Social Media Policy provides that “Department members are free to express themselves as private citizens in matters of public concern to the degree that their speech does not: [a.] Impair working relationships of the department for which loyalty and confidentiality are important; [b.]Impede the performance of duties; [c.] Impair discipline and harmony among co-workers; or [d.] Negatively impact or tend to negatively impact the department’s ability to serve the public.”
  • “The Social Media Policy also prohibits “speech that ridicules, maligns, disparages, or otherwise promotes discrimination against race, ethnicity, religion, sex, national origin, sexual orientation, age, disability, political affiliation, gender identity and expression or other explicit class of individuals.”
  • “Mr. Sabatini does not identify himself as an employee of Defendant on his Facebook profile, nor did he identify himself as such in any of the Facebook posts reviewed by [the Internal Affairs Bureau].”
  • “After determining that Mr. Sabatini’s speech violated the Social Media Policy,  [the Internal Affairs Bureau] found that Mr. Sabatini’s conduct warranted termination for a first offense under Line 29 of the Disciplinary Decision Guide, which states that ‘[a]ny act or omission of such an egregious nature that the employee is rendered ineffective in his position and/or the act or omission would tend to bring the Department into public discredit” justifies termination.'”
  • “The statements that [the Internal Affairs Bureau] reviewed related to matters of public concern.”
  • “The Social Media Policy is unconstitutionally vague in that it fails to inform a person of ordinary intelligence what conduct on social media is permitted or not permitted, and also in that it allows for arbitrary and discriminatory enforcement of its provisions.”
  • “The Social Media Policy is also targeted at the free speech rights of Defendant’s employees, as it prohibits various forms of protected speech without a reasonable basis.”

The Plaintiff is being represnted by Marc Randazza, who is an is an officer of the First Amendment Lawyers’ Association.

Geoffrey Stone: “Richard Spencer’s Right to Speak at Auburn”

Richard Spencer

This from Professor Geoffrey Stone’s op-ed in the New York Times: “Last week, Richard B. Spencer, a white nationalist and one of the leaders of America’s so-called alt-right movement, announced that he would be giving a speech on the campus of Auburn University in Alabama. Auburn, a public university, has a policy of permitting anyone who wants to rent meeting space to do so. . . .  Several days later, though, Auburn changed its tune. ‘In consultation with law enforcement,’ the university announced that it had decided to cancel the event because of ‘credible evidence that it will jeopardize the safety of students, faculty, staff and visitors.'”

“. . . . Auburn may defend its decision on the grounds that, unlike other speakers, Mr. Spencer’s speech could generate a violent response. Thus, the university argues, there is a reasonable justification to forbid his speech, even though other people’s are routinely allowed.”

“This debate has long interested the Supreme Court, which came to the conclusion in the 1960s that threats of violence cannot, except in truly extraordinary circumstances, justify government action that silences a speaker. Rather, the court has held that the government’s constitutional obligation in such circumstances is to take all reasonable steps to protect the rights of the speaker. . . .”

“Auburn had it right the first time.”

Note: As he notes in his op-ed, as a young law professor Stone assisted the ACLU in the case of National Socialist Party of America v. Village of Skokie

New & Notable Blog Posts 

  1. Eugene Volokh, N.Y. judge: ‘The Daily News shall remove plaintiff [Eric] Lerner’s name and photograph from the Article’, The Volokh Conspiracy, April 18, 2017
  2. Steven D. Schwinn, Court Gives No First Amendment Protection to Competition Art at U.S. Capitol, Constitutional Law Prof Blog, April 14, 2017
  3. Erica Goldberg, Masterpiece Cakeshop, the Pence Policy, and Hard Questions about Religious Liberty Versus Discrimination, In a Crowded Theater, April 4, 2017

Roger Baldwin

Today in First Amendment History 

April 19, 1929: Supt. of NYC Schools Bars Talk on “Free Speech” by ACLU Head Roger Baldwin

This from Today in Civil Liberties History:

“The Superintendent of the New York City schools barred a talk on “free speech” by ACLU Director Roger Baldwin. The incident was one of several in the 1920s in which school officials barred talks in schools by the ACLU. Self-appointed patriot groups, meanwhile, pressured school officials to prevent discussions of ideas they regarded as “radical.”For the long battle between the ACLU and the New York City school system over freedom of speech, see May 21, 1926 (when the ACLU was banned from the schools); March 19, 1928 (when the school superintendent denounced the ACLU); and November 27, 1928 (when the ACLU won the right to speak in the schools).”

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

Opinions Rendered 

  1. Expressions Hair Design v. Schneiderman (opinion here)

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (transcript here)
  2. Lee v. Tam (transcript here)
  3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

  1. Augsburg Confession
  2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

  1. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Keefe v. Adams
  2. Scott v. Georgia
  3. Bondi v. Dana’s Railroad Supply
  4. Bennie v. Munn
  5. Flytenow v. Federal Aviation Administration
  6. Armstrong v. Thompson
  7. Wolfson v. Concannon
  8. Dart v.
  9. NCAA v. O’Bannon
  10. Mech v. School Board of Palm Beach County
  11. Williams v. Coalition for Secular Government 
  12. 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. 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: Review 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  

→ The Court’s next Conference is on April 21, 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, #149: April 26, 2017

Last Scheduled FAN, #147Was Justice Scalia a First Amendment free-speech originalist?

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