FAN 152 (First Amendment News) Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book

Breaking News from the New York Times

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”


Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

 Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)


Gilbert Roe died in 1929.

* * * *

Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free SpeechHere is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

Cert. Petition filed in Right to Assembly Protest Case

The case is Garcia v. Bloomberg (16-1082). The issue is whether, when officers permit individuals to exercise First Amendment rights to speech and peaceful assembly, officers must provide fair warning prior to arresting demonstrators for participation in the demonstration.”

Andrew Pincus

Relevant factsOn October 1, 2011, police accompanied an Occupy Wall Street march that departed lower Manhattan for an organized rally in the Brooklyn Bridge Park. Although there was no parade permit, police escorted the march, flanking it from all sides. Officers directed marchers to cross streets against the lights, and they blocked traffic to facilitate the march. Police guided the marchers for an extended period, ultimately leading the parade to the Brooklyn Bridge.”

“Once at the Bridge, police closed the Bridge’s roadway to traffic. A line of officers blocked the entrance to the Bridge’s roadway, and the marchers began to enter the narrow pedestrian walkway. The narrowness of the walkway created a bottleneck that caused congestion, extending multiple blocks. At this point, one officer announced to those in the very front of the massive march that they were not per- mitted to walk onto the Bridge roadway. But the vast majority of marchers (including all petitioners) never heard any such warning.”

“The line of police officers blocking the Bridge’s roadway then turned and began walking onto the Bridge. The marchers jubilantly followed in an orderly fashion. The police officers, who had flanked the march all along, escorted and guided the marchers onto the Bridge, without issuing any warning or telling the marchers to disperse. But, once on the Bridge, police trapped more than 700 marchers and arrested them for disorderly conduct.”

“The Seventh, Tenth, and D.C. Circuits have held arrests in materially indistinguishable circumstances unlawful. The Second Circuit disagreed. . . .” [Source: Petitioners’ cert. petition]

Counsel for Petitioners: Andrew Pincus (lead counsel), Charles Rothfeld, Michael Kimberly, Mara Verheyden-Hillard, Carl Messineo, and Eugene Fidell.

Recall: Mr. Pincus was counsel for the Petitioner in Williams-Yulee v. The Florida Bar (2015).

In an amicus brief on behalf of the Reporters Committee for Freedom of the Press and the National Press Photographers Association, Robert Corn-Revere (joined by Eric Feder, Bruce Brown, Gregg Leslie & Mickey Osterreicher) argues that:

  1. The First Amendment Rights of Freedomof the Press and Freedom to Peaceably Assemble Are Intertwined, and
  2. The News Media Has a ParticularlyStrong Interest in Curbing Law Enforcement Abuses During PublicProtests

The brief opens with this observation:

“In recent years, amici have observed an alarming rise in journalists being arrested while covering political protests and demonstrations in public places. Frequently, reporters and photographers are swept up in mass arrests that the police initiate without warning or an opportunity for the journalist to identify him-or herself as a member of the press. In fact, at least two journalists were among those arrested with the Petitioners in the incident giving rise to this lawsuit. Amici have spoken out publicly on numerous occasions to condemn this trend, provided legal advice on the risks of being arrested (and what to do if arrested) to journalists covering public events, and have filed amici curiae briefs in cases involving arrested journalists.”

“The legal reasons why the Court should resolve the clear split among the Courts of Appeals on the requirement that police provide fair warning prior to arresting participants in a previously-permitted demonstration are amply set forth in the Petition. Amici write separately to underscore the particular impact that unclear standards in this area have on the press, which plays a vital role in informing the citizenry about the political messages expressed at mass public demonstrations and in monitoring the conduct of law enforcement. There can be no greater chill on the exercise of the freedom of the press than the threat of arrest for doing nothing more than reporting a story. . . .”

State “Ag-Gag” Law Challenged 

Jay Stanley

This from Jay Stanley writing in an ACLU blog Post: “Today the ACLU of Idaho will be participating in a court argument that is crucial for the future of corporate whistleblowers’ rights and their ability to photograph wrongdoing. The argument, before the federal 9th Circuit Court of Appeals in Seattle, is to consider the constitutionality of a so-called “Ag-Gag” law enacted in 2014 by the state of Idaho.”

[The case: Animal Legal Defense Fund v. Wasden. Video of Ninth Circuit oral arguments here]

The other day I spoke with ACLU of Idaho Legal Director Richard Eppink, and he explained what’s at stake:

A number of states have passed these “Ag Gag laws.” Idaho’s version makes it a crime to use a misrepresentation to gain access to, or employment at, an “agricultural production facility”—places like factory farms and slaugterhouses, but also encompassing a bunch of other places by the way they define this. It’s aimed primarily at journalists and undercover investigators.

Idaho’s Ag Gag statute also makes it a crime to take video or audio recordings in these places without the owner’s permission. So, workers who want to document unsafe working conditions, investigators who want to document animal cruelty, people who are just visiting a farm and want to document what they see—anything like that would be punishable in Idaho by up to a year in jail. And you’d have to pay twice the “damages” that were caused to the agricultural production facility as a result of your recording. This is specifically targeted at organizations like Mercy for Animals and the Animal Legal Defense Fund, which have exposed animal cruelty and put it on the Internet.

Eppink told me that the ACLU of Idaho lobbied against this law when it was in the legislature in 2014. They were joined by a wide spectrum of allies, including animal rights and welfare organizations, labor unions, and reporters’ groups. Also opposing the law were immigrant rights groups; in Idaho, as in most places, a lot of the agricultural work is done by immigrants, many of them undocumented, who are exposed to some of the most dangerous working conditions. This law would prevent them from being able document those conditions.

Nevertheless, the Idaho legislature passed, and the governor signed, the law. Aftewards, Eppink told me,

the Animal Legal Defense Fund contacted us to see if we’d be interested in joining them in a lawsuit, which we decided to do. It’s a facial challenge to the law both on First Amendment speech grounds and equal protection grounds, and has a diverse group of plaintiffs from the same groups that lobbied against the bill.

We won the first round when the federal district court struck the law down on both speech and equal protection grounds. The state appealed to the 9th Circuit, and now we’re defending that victory on appeal. Justin Marceau, a Denver law professor who works with the Animal Legal Defense Fund, will be arguing in Seattle on Friday and I will be there with him.

I asked Eppink: what about the argument that. while Americans have a First Amendment right to take photographs of things in plain view in public spaces, it’s also true that (as we describe in our Know Your Rights guide for photographers) private property owners have the right to set rules about the taking of photos and videos on their property? His response:

Certainly all of us have a right to control what happens on our private property. But remember that we’re not talking about the privacy of the home here—we’re talking about a heavily regulated industry that affects all of us: food production. And most of us don’t have the state government coming in and jailing people and making them pay twice the business loss caused by bad publicity from release of a video of behaviors the public finds abhorrent. In the past we’ve always left damage settlements to private disputes between individuals. Certainly I can call the police if somebody is trespassing, but it’s another thing entirely to add criminal penalties when property owners say “Not only were they trespassing, officer, but they took a video that I don’t like!”

Overall this argument is significant for us all because it has implications that go far beyond agriculture. As Eppink put it:

This law strikes at the core assumption that I think many of us had up to this point, which is that undercover journalists—people like Upton Sinclair who wrote The Jungle—have been serving an important role in exposing to the public what’s happening in their food production systems and other industries that we enjoy the benefits of.

And all of us working against this law understand that agriculture is being used as the test case for this type of law, and that if it succeeds in withstanding constitutional challenge, and the courts say “yes you can criminally punish anyone for taking video,” then we’ll almost certainly see this law spread to other industries like mining and even banking.

In other words, the risk is that we’ll set up a society where businesses and corporations can have cameras on us everywhere we go, but we can’t document what’s happening in these places. It will be the property owners who by and large have the power of the camera to present their side of the story using video without the rest of us being able to present ours.

The 9th Circuit is expected to hand down its ruling later this year.

Campus-Free-Speech Legislation in the States

This from Colleen Flaherty writing in Inside Higher Ed: “Numerous states are considering legislation designed to ensure free speech on college campuses, following violent protests over speakers at the University of California, Berkeley, and Middlebury College. Some of the bills would, controversially, mandate punishing students who disrupt campus speakers and require institutions to keep mum on political issues — and perhaps nowhere has the debate been as contentious as in Wisconsin.”

“Republican lawmakers who support a bill there say it would ensure all views may be heard across public universities. Those opposed question the proposal’s scope and see it as one more legislative incursion into academic life. That’s following last session’s gutting of legal protections for tenure in Wisconsin.”

“‘In any public forum, and particularly at a public university, any attempts to limit expression must be done with extreme caution, reflecting compelling institutional interests and respecting the First Amendment,’ David Vanness, an associate professor of population health sciences at the University of Wisconsin at Madison, told legislators last week during a Wisconsin Assembly higher education committee hearing on the so-called Kremer bill. It’s backed by key Republicans, including Speaker Robin Vos. . . .”


  1. Joe Cohn, New Tennessee law is good news for academic freedom, FIRE, May 15, 2017
  2. Colleen Flaherty, Tennessee Free Speech Bill Signed into Law, Inside Higher Ed, May 11, 2017
  3. Colleen Flaherty, North Carolina, Wisconsin Bills Would Mandate Punishment for Campus Speech Disrupters, Inside Higher Ed, April 28, 2017
  4. Colleen Flaherty, Dealing with Disrupters, Inside Higher Ed, March 22, 2017

Institute for Constitutional History to Host Free-Speech Seminar

HostInstitute for Constitutional History

Professor Garrett Epps

Dates: Tuesday nights, 6:00-8:00 p.m., September 12, 19, October 17, 24, November 14, and 21, 2017

Location:  The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Instructor:  Garrett Epps is Professor of Law at the University of Baltimore and the editor of Freedom of the Press (The First Amendment): Its Constitutional History and the Contemporary Debate (Prometheus, 2008). A former reporter for The Washington Monthly, he is also Supreme Court correspondent for The Atlantic Online.

Application Process: Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at until May 15, 2017.*  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

* Technically speaking, the deadline seems to have passed?

Professor Eugene Volokh

Volokh: Lower courts have consistently struck down campus speech codes

This from Professor Eugene Volokh:

“The Supreme Court has made ‘crystal clear’ that the government may not discriminate based on viewpoint, even in limited public fora such as university open spaces (or for that matter even university programs for funding student speech). Lower courts have consistently struck down campus speech codes aimed at supposedly bigoted speech. See, e.g.:

  1. Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1184-85 (6th Cir. 1995);
  2. DeJohn v. Temple Univ., 537 F.3d 301, 316-17, 320 (3d Cir. 2008);
  3. McCauley v. Univ. of V.I., 618 F.3d 232, 237-38, 250 (3d Cir. 2010);
  4. Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.3d 386, 388-89, 391, 393 (4th Cir. 1993);
  5. College Republicans v. Reed, 523 F. Supp. 2d 1005, 1010-11, 1021 (N.D. Cal. 2007);
  6. Roberts v. Haragan, 346 F. Supp. 2d 853, 870-72 (N.D. Tex. 2004);
  7. Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 373 (M.D. Pa. 2003);
  8. Booher v. Bd. of Regents of N. Ky. Univ., 1998 U.S. Dist. LEXIS 11404, *28-*31 (E.D. Ky. 1998);
  9. UWM Post, Inc. v. Regents, 774 F. Supp. 1163, 1165-66, 1173, 1177 (E.D. Wis. 1991);
  10. Doe v. Univ. of Mich., 721 F. Supp. 852, 856, 864-66 (E.D. Mich. 1989).

“And in Christian Legal Society v. Martinez (2010), the Court gave students’ freedom to ‘express any viewpoint they wish — including a discriminatory one’ as an example of “this Court’s tradition of protect[ing] the freedom to express the thought that we hate” (quotation marks omitted). There is no First Amendment exception for ‘hate speech‘ or ‘racist signs, symbols and speech.'”

Forthcoming Book

New & Notable Blog Posts

  1. Eugene Volokh, Is projecting ‘Pay Trump Bribes Here’ onto a wall of the Trump Hotel a trespass?, The Volokh Conspiracy, May 16, 2017
  2. Erica Goldberg, The Resistance and the First Amendment, In a Crowded Theater, May 16, 2017
  3. Eugene Volokh, Kentucky court rejects government attempt to punish printer for refusing to print ‘Lexington [Gay] Pride Festival’ T-shirt, The Volokh Conspiracy, May 14, 2017
  4. Eugene Volokh, Share on TwitterShare via EmailMontana criminal libel investigation for accusing a judge of misbehavior, The Volokh Conspiracy, May 11, 2017

News, Editorials, Op-eds, & Blog Posts

  1. Mozilla and Stanford Law Panel: What Role Does the First Amendment Have in the Patent Law?, JDSupra, May 16, 2017
  2. Weekend rallies protected by First Amendment, including torch burning, CBS19, May 15, 2017
  3. Staff Report, Augusta museum to launch traveling exhibit on First Amendment,, May 15, 2017

Video: In re Judith Miller – National Security & the Reporter’s Privilege

(courtesy Ann Wilkins, D.C. Circuit)

This from the Historical Society of the District of Columbia: “On February 14, 2017, the Society sponsored a program to explore the common-law basis for a reporter’s privilege and how best to strike the balance between the public’s right to know and the Government’s need to secure information in the national interest. The program began with remarks by Professor David Pozen of Columbia Law School. He provided the historical background to the case in which New York Times reporter Judith Miller refused to comply with a grand jury subpoena that sought access to documents and testimony related to conversations she had had with a confidential source. Professor Pozen also highlighted the unusual nature of this case – unlike the paradigm situation where a reporter seeks to protect the identity of a low-level whistleblower regarding government corruption, this case involved the strategic leaking of information by high-level government officials in an apparent effort to discredit a low-level government official.”

“Once the stage was set, the program moved to a reenactment of the argument before the D.C. Circuit. Laura R. Handman of Davis Wright Tremaine LLP presented the case on behalf of Judith Miller, arguing that the court should recognize a federal common-law reporter’s privilege to protect the confidentiality of her sources. Amy Jeffress of Arnold & Porter Kaye Scholer LLP argued the case for the Government, stressing that the Supreme Court had already rejected such a privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), and that lower federal courts are not empowered to create new privileges.”

“The advocates argued their positions to Judge David S. Tatel and Senior Judge David B. Sentelle, two of the original panelists that heard the case in 2004.”

“Following the reenactment, former Deputy Attorney General James M. Cole, now with Sidley Austin LLP, joined Professor Pozen, Ms. Handman, and Ms. Jeffress on a panel* to discuss the broader implications of the case and the relationship between the press and the government. Moderator Stuart S. Taylor, Jr.,(pictured left) challenged the panel to consider how best to think about a reporter’s privilege now that anyone with a Twitter account may qualify as a journalist. The panel also explored the benefits of the Department of Justice’s current policy to restrict the ability of prosecutors to compel reporters and media outlets to disclose information as well as the drawbacks of having such a policy reflected only in internal guidance as opposed to a federal statute.”

The Federal Judicial Center (FJC) videotaped the program which can be found here.


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. Garcia v. Bloomberg
  2. Republican Party of Louisiana, et al. v. FEC
  3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary) (“For the ninth conference in a row, the justices did not act on the petition for review in Masterpiece, a Colorado baker’s challenge to the state’s public accommodations law.”)

Summary Disposition

  1. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Mulligan v. Nichols
  2. Alabama Democratic Conference v. Marshall
  3. Augsburg Confession
  4. Keefe v. Adams
  5. Scott v. Georgia
  6. Bondi v. Dana’s Railroad Supply
  7. Bennie v. Munn
  8. Flytenow v. Federal Aviation Administration
  9. Armstrong v. Thompson
  10. Wolfson v. Concannon
  11. Dart v.
  12. NCAA v. O’Bannon
  13. Mech v. School Board of Palm Beach County
  14. Williams v. Coalition for Secular Government 
  15. 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 May 18, 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, #153: May 24 2017

Last Scheduled FAN, # 151Morgan Weiland Meet Ira Glasser — The First Amendment & the Liberal Dilemma

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