FAN 158 (First Amendment News) 2016-2017 Term Ends: Three First Amendment Victories & cert. grant in religious cake-baker case
Today, after consideration in many conferences, the Court agreed to hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The issue in the case is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. The Coloroado Court of Appeals denied those First Amendment claims.
2016-2017 Term: First Amendment Free Expression Opinions
With the close of this Term, the Roberts Court has rendered opinions in 46 First Amendment free-expression cases. Notably, as indicated below, this Term the Court was unanimous in all three of its First Amendment free speech cases.
- Packingham v. North Carolina (2017) (8-0, per Roberts, C.J.) (opinion by Alito, J., concurring in the judgment) (striking down N.C. law prohibiting registered sex offenders access to Internet sites that permit minor children to become members or to create or maintain personal Web pages)
- Matal v. Tam (2017) (8-0, per Alito, J.) (with separate opinions by Kennedy, J., concurring in part & concurring in the judgment, and Thomas, J., concurring in part & concurring in the judgment) (disparagement clause of the Lanham Act violates the First Amendment’s free speech clause)
- Expressions Hair Design v. Schneiderman (2017) (8-0, per Roberts, C.J.) (opinion by Breyer, J., concurring in the judgment, and an opinion by Sotomayor, J., concurring in the judgment) (holding that N.Y. credit card surcharge statute regulates speech within the meaning of the First Amendment; remaded to determine whether law was valid commercial speech regulation under Central Hudson and whether the law can be upheld as a valid disclosure requirement under Zauderer).
Pending Appeals & Petitions & Related Cases
- Elonis v. United States
- Harris v. Cooper
- National Institute of Family and Life Advocates v. Becerra
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
- Independence Institute v. FEC (affirmed)
- Garcia v. Bloomberg
- Mulligan v. Nichols
- Alabama Democratic Conference v. Marshall
- Augsburg Confession
- Keefe v. Adams
- Scott v. Georgia
- Bondi v. Dana’s Railroad Supply
- 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: 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: Petition Denied
- 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: Cert. Denied
- 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.)
Roberts Court Era: Justice Kennedy’s Majority or Plurality First Amendment Free-Expreesion Opinions
Given the talk in the news about Justice Anthony Kennedy’s possible retuirment, I thought it useful to list his free-expression First Amendment opinions published during the era of the Roberts Court:
- Garcetti v. Ceballos (2006) (vote: 5-4)
- Citizens United v. Federal Election Commission (2010) (vote: 5-4)
- Sorrell v. IMS Health Inc. (2011) (vote: 6-3)
- Borough of Duryea v. Guarnieri (vote: 2011) (8-1)
- United States v. Alvarez (2012) (vote: 6-3)
- Packingham v. North Carolina (2017) (vote: 8-0)
→ Notable Roberts Court Era Separate Opinions:
- Matal v. Tam (2017) (concurring in part & concurring in the judgment)
- Williams-Yulee v. The Florida Bar (2015) (5-4) (dissenting)
College fires professor over comments made on TV
This from a story by Josh Delk writing for The Hill: “Essex County College has fired adjunct professor Lisa Durden after she made racially charged comments in an interview with Tucker Carlson on Fox News, according to a new report by the Associated Press.”
“The college’s president, Anthony Munroe, announced the decision Friday, two weeks after Durden went on “Tucker Carlson Tonight” to discuss an “all-black Memorial Day celebration” hosted by a Black Lives Matter group.”
“When asked by Carlson about the event, Durden interrupted the host, saying “boo hoo hoo. You white people are angry because you couldn’t use your white privilege card to get invited” to the Black Lives Matter event.”
“‘You’re demented, actually,’ Tucker later responded to her defense.”
“Durden went on to call America a ‘racist society.'”
“According to AP, Durden was suspended with pay on June 8, two days after the interview aired, when college officials say they received complaints about her comments. After a Tuesday meeting with college officials, she was fired. . . .”
→ Video clip here
→ Full text of statement from college president here
→ Excerpt from President Anthony E. Munroe’s statement: “While the adjunct who expressed her personal views in a very public setting was in no way claiming to represent the views and beliefs of the College, and does not represent the College, her employment with us and potential impact on students required our immediate review into what seemed to have become a very contentious and divisive issue. For the purpose of a fair and immediate review, the adjunct was suspended with full pay, for the remainder of the summer I session which equated to six (6) working days, pending the outcome of a fair and thorough review of the matter. The adjunct addressed the College community at an open forum on June 20th. In consideration of the College’s mission, and the impact that this matter has had on the College’s fulfillment of its mission, we cannot maintain an employment relationship with the adjunct. The College affirms its right to select employees who represent the institution appropriately and are aligned with our mission.”
FIRE’s Policy Reform department is hiring
Free speech-minded attorneys and recent law school graduates, pay attention: FIRE is looking to add a new staff member to its Policy Reform department.
FIRE’s Policy Reform team works with college students, faculty members, administrators, and general counsels to improve their institutions’ protections for free speech and academic freedom. We help to revise unconstitutional and restrictive speech codes, enact policy statements codifying the principles underlying the First Amendment, and work in other ways to improve the campus climate for free expression. We’re now looking to add another member to our team!
Applicants can check out the full job posting before submitting their application materials.
The ideal applicant will be passionate about First Amendment law and principles, demonstrate enthusiasm for working with students, faculty members, and administrators, and possess the legal analysis, writing, and research skills that are critical to a successful career in constitutional law and civil liberties.
Chris Finan: New Director of National Coalition Against Censorship
NCAC Press Release: The National Coalition Against Censorship (NCAC), an alliance of 56 national non-profit organizations, announced today that it has hired Christopher M. Finan as its next executive director. Joan Bertin, the current executive director, is stepping down after leading the organization for 20 years. NCAC promotes freedom of thought, inquiry and expression and opposes censorship in all its forms.
“We are indeed lucky that a free expression advocate the caliber of Chris Finan has agreed to lead the NCAC to its next chapter,” said Jon Anderson, chair of the NCAC Board of Directors and president and publisher of Simon & Schuster Children’s Publishing. “In this most challenging of times for First Amendment rights, we need someone with the experience and reputation that Chris brings to the table in protecting the rights of all Americans to express themselves as they choose.”
Finan has a long career as a free speech activist. He is currently director of American Booksellers for Free Expression, part of the American Booksellers Association (ABA). In 1982, he joined Media Coalition, a trade association that defends the First Amendment rights of booksellers, publishers, librarians and others who produce and distribute First Amendment-protected material. In 1998, he became president of the American Booksellers Foundation for Free Expression. The foundation merged with ABA in 2015.
Finan has worked closely with NCAC as a member of the board of directors and as a board chair. In 2007, he and Bertin created NCAC’s Kids’ Right to Read Project, which supports parents, students, teachers and librarians who are fighting efforts to ban books in schools and libraries.
“I am very grateful for the opportunity to lead an organization that plays such an important role in protecting free expression. I am also very fortunate to be succeeding Joan Bertin, who has led NCAC’s vigorous defense of free speech during a time of growing censorship pressure,” Finan said.
As examples of NCAC’s recent advocacy, Finan pointed to statements defending publishers who are pressured to censor books that some critics consider offensive, condemning the Trump administration’s attacks on the press and criticizing the Walker Art Center’s decision to dismantle a sculpture after accusations that it was “cultural appropriation.”
Joan Bertin Honored by Freedom to Read Foundation
NCAC Press Release: Joan Bertin, the National Coalition Against Censorship’s (NCAC) longtime executive director, is a 2017 recipient of the Freedom to Read Foundation’s (FTRF) Roll of Honor Award, which recognizes individuals for outstanding contributions to safeguarding intellectual freedom and the right to read.
The FTRF, which is affiliated with the American Library Association, protects and defends the First Amendment to the Constitution and supports the right of individuals to access information. Bertin is being recognized for her efforts to provide “support, education, and direct advocacy to people facing book challenges or bans in schools and libraries.” In announcing the award, the FTRF observes that under Bertin’s leadership, NCAC has defended hundreds of book titles across the country, helping ensure that thousands of children will continue to enjoy literary masterpieces and popular young adult novels.
Bertin said, “I am deeply honored by the award, especially for its recognition of NCAC’s contributions to the protection of the intellectual freedom rights of young people. Books can contribute so much to kids’ intellectual and emotional development, and it has been my privilege and pleasure to protect their right to read.”
The award will be presented at the 2017 American Library Association Annual Conference during its Opening General Session on Friday, June 24, in Chicago.
New Additions to FIRE’s Online First Amendment Library
- The History of the Alien, Sedition, Espionage, & Related Acts
- Secondary Effects Doctrine Essay
- Overbreadth Essay
- Nude Dancing Essay
Forthcoming: Timelines on Movie Censorship and Anthony Comstock
- Loren Glass, Rebel Publisher: How Grove Press ended censorship of the printed word in America (Seven Stories Press, March 20, 2018)
Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.”
Related: Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (2016)
- Joel Simon, The New Censorship: Inside the Global Battle for Media Freedom (Columbia University Press, January 23, 2018)
- Mickey Huff, Andy Lee Roth, et al, editors, Censored 2018: Press Freedoms in a “Post-Truth” Society-The Top Censored Stories and Media Analysis of 2016-2017 (Seven Stories Press, October 3, 2017)
New & Notable Blog Posts
- Ruthann Robson, En Banc Ninth Circuit Upholds Liquor Regulation Against First Amendment Challenge, Constitutional Law Prof Blog, June 23, 2017 (“In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.”)
- Zach Greenberg, Supreme Court strikes down law prohibiting disparaging trademarks, affirms protection for offensive expression, FIRE, June 20, 2017
News, Op-eds, Editorials & Blog Posts
→ Ilya Shapiro, Even sex offenders have First Amendment rights, Washington Examiner, June 19, 2017
- Alex Swoyer, Islamic State flag on New Hampshire dam raises First Amendment questions in times of terrorism, Washington Times, June 25, 2017
- Mark Joseph Stern, Does Partisan Gerrymandering Violate the First Amendment?, Slate, June 19, 2017
Next Scheduled FAN, #159: June 14, 2017
Last Scheduled FAN, # 157: Today: Senate Judiciary Committee to hold hearing on campus free speech