FAN 164 (First Amendment News) 1917 Masses Case to be Reargued in Second Circuit — Floyd Abrams & Kathleen Sullivan to Argue Case

On November 6th the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Pattenthis on the occasion of the 100th anniversary of the case. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Second Circuit Chief Judge Robert Katzmann will introduce the event. Noted First Amendment lawyer Floyd Abrams will appear on behalf of Postmaster Patten (yes, he will represent the government) and Kathleen M. Sullivan (former Stanford Law dean and seasoned appellate litigator) will appear on behalf of Masses Publishing Co.

* * * *

→ Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date & Locale: Friday, October 20, 2017 – New York University School of Law

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

  1. The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)
  2. The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)
  3. The State of Free Speech Doctrine in 1917: David Rabban (Texas)

Moderator: Michael McConnell (Stanford)

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

  1. Learned Hand’s Jurisprudence: Ed Purcell (New York Law School)
  2. The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)
  3. The Decision: Vincent Blasi (Columbia)

Moderator: Judge Robert Sack (Second Circuit)

Lunch Break – 12:30-1:30

Aftermath of the Masses decision1:45-3:15

  1. Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)
  2. Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)
  3. Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

Moderator: Jeremy Kessler (Columbia)

The Influence of Masses on Modern First Amendment Doctrine — 3:30-5:00

A 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)

Moderator: Robert LoBue (Patterson Belknap Webb & Tyler)

Reception – 5:15-6:15 p.m.

More Controversy: The ACLU’s Defense of Free Speech 

The debate over the American Civil Liberties Union’s stand on  free-speech issues continues as evidenced by the articles linked below: 

  1. David Cole, Why We Must Still Defend Free Speech, New York Review of Books, Sept. 28, 2017 (ACLU National Legal Director)
  2. K-Sue Park, The A.C.L.U. Needs to Rethink Free Speech, New York Times op-ed, Aug. 17, 2017 (housing attorney & Critical Race Studies fellow at the U.C.L.A. Law School)
  3. Ira Glasser, Thinking Constitutionally About Charlottesville, Huffington Post, Aug. 22, 2017 (Executive Director, ACLU (1978-2001))
  4. Laura Weinrib, The ACLU’s free speech stance should be about social justice, not ‘timeless’ principles, Los Angeles Times, Aug. 30, 2017 (author of The Taming of Free Speech: America’s Civil Liberties Compromise)

1977 Abood Ruling to be Questioned Yet Again 

Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

This from Amy Howe over at SCOTUSblog writing about Janus v. American Federation of State, Municipal and County Employees on which cert was granted recently:

Amy Howe

“When the justices review the case of Mark Janus, an Illinois state employee, they will not necessarily be writing on a blank slate. In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that, even if they cannot be required to pay fees that a union would use for political activity, like union organizing, public-sector employees can be required to pay a fee to cover the costs of contract negotiations. But Janus argued that even requiring him to pay the more limited fee violates his First Amendment rights because issues related to contract negotiations – like salaries, pensions and benefits for government employees – are inherently political. Therefore, he contends, his fee is going to support speech that is intended to affect the government’s policies, even if he disagrees with it. The U.S. Court of Appeals for the 7th Circuit rejected Janus’ argument, holding that it lacked the power to overrule the Supreme Court’s decision in Abood. But, Janus told the justices in his petition for review, they do have that power and should exercise it here.”

“The justices did not reach the union-fees issue the first time they considered it, in the 2014 case Harris v. Quinn; instead, they ruled that the employees in that case – home-health-care workers who were paid by the state – were not “true” public employees. They returned to the question again two terms ago and heard oral argument in January 2016, but they deadlocked after the February 13, 2016, death of Justice Antonin Scalia. With Justice Neil Gorsuch now on the bench, the justices are expected to decide the issue once and for all.”

Counsel for Petitioner: William L. Messenger (National Right to Work Legal Defense Foundation)

Now Online: Full Text of the 1957 Unpublished Howl Opinion 

FIRE’s online First Amendment Library has posted the full text of the remarkable 1957 Howl opinion (People v. Ferlinghetti) by muncipal Judge Clayton Horn.

It is an impressive obscenity opinion, especially for its time and given the fact that the judge was not an appellate jurist who had no law clerk. The case involved the criminal prosecution of Lawrence Ferlinghetti (the owner of City Lights) and his clerk (Shig Murao) for selling Allen Ginsberg’s poem HOWL.

Judge Horn found HOWL not obscene in October 1957.

The complete text of the opinion, replete with long omitted citations reinserted, was first published in Mania: The Story of the Outraged and Outrageous Lives That Launched a Cultural Revolution (2013) by Ronald Collins and David Skover.

New & Forthcoming Scholarly Articles

Prof. Robert Post

Abstract: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

Prof. Benjamin Sachs

Abstract: Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.

  1. Daniel P. Tokaji, Gerrymandering and Association, William & Mary Law Review (forthcoming 2018)
  2. Scott Gant, Andrew Michaelson & Edward Normand, The Hart–Scott–Rodino Act’s First Amendment Problem, Cornell Law Review (forthcoming 2017)
  3. Komal Patel, Testing the Limits of the First Amendment: How a CFAA Prohibition on Online Antidiscrimination Testing Infringes on Protected Speech Activity, Columbia Law Review (forthcoming 2017)
  4. Alexander Tsesis, Categorizing Student Speech, Minnesota Law Review (forthcoming 2017)

Accidental Courtesy: A Daring Documentary about Confronting Racism 

Daryl Davis

The festival trailer for the award-winning documentary feature about Daryl Davis, a black musician who befriends members of the KKK and other white supremacists in search of the answer to his question: “How can you hate me if you don’t even know me.”

Accidental Courtesy: Daryl Davis, Race & America (trailer)

Today in First Amendment History

  • Oct. 4, 1961: Lenny Bruce, Pioneering Comedian, Arrested in San Francisco

Lenny Bruce

This from Today in Civil Liberties History: “Comedian Lenny Bruce was arrested on this day at the Jazz Workshop in San Francisco on obscenity charges for saying the word “cocksucker.” Bruce was a pioneer in aggressive, politically oriented stand-up comedy, using humor to attack racism, sexual prudery, and religious hypocrisy in American life. Today’s tradition of boundary-breaking stand-up comedy, with respect to language, sex, politics, race, and religion, originated with Lenny Bruce.”

“Many observers then and now argue that Bruce’s arrests, including those in Chicago and New York City, were prompted not by dirty words but by his comedy routines that made fun of the Catholic Church, which offended local politicians and police. For his New York City arrest, see November 4, 1964. For that arrest, he was pardoned by the governor of New York 39 years later on December 23, 2003.”

Hugh Hefner (1926-2017)

Hugh Hefner (photo by Mike Shea)

With Hugh Hefner circa 2000, this to interview him for our Lenny Bruce book. — Ron Collins, Hugh Hefner & David Skover (Beverly Hills, Ca.)

  1. Gene Policinski, Hefner, Rolling Stone: Goodbye to two original free spirit, free speech icons, Newseum Institute, Sept. 28, 2017
  2. Rob Crilly, Hugh Hefner, Playboy founder who built a global brand on sex and free speech, dies at 91, The Telegraph, Sept. 28, 2017
  3. Hugh Hefner: 5 reasons to love him and 5 reasons to hate him, Tribune Review, Sept. 28, 2017
  4. Scott Simon, Playboy Founder Hugh Hefner, Champion Of Free Speech And ‘Smut,’ Dies At 91, NPR, Sept.27, 2017

United States v. Playboy Entertainment Group, Inc. (2000) (First Amendment Encyclopedia entry here)

Hugh M. Hefner First Amendment Awards (1980-2017)

 Hugh M. Hefner Foundation First Amendment Program

Jarret Bencks, Christine Hefner: A comic connection: Hugh Hefner and Lenny Bruce, Brandeis Now, Oct. 28, 2016  (C-SPAN-3 video here) (see also Lenny Bruce on Playboy’s Penthouse (1959, on YouTube))

News, Editorials, Op-eds & Blog Posts 

  1. Adam Liptak, Amid Protests at Trump Hotel, Neil Gorsuch Calls for Civility, New York Times, Sept. 28, 2017 [“Those with whom we disagree vehemently still have the best interests of the country at heart,” Justice Gorsuch said. ”We have to learn not only to tolerate different points of view but to cherish the din of democracy … It’s not just about good manners and courtesy. It’s about keeping our republic.”]
  2. Kevin Robinson, Health coach claims Florida licensing laws violate First Amendment, Pensacola News Journal, Oct. 3, 2017
  3. Tom Rogan, Liberal guests to Bill Maher: Assault Nazis and scrap the First Amendment, Washington Examiner, Oct. 3, 2017
  4. David Davenport, The Myth That All ‘Free Speech’ Is Constitutionally Protected, Forbes, Oct. 2, 2017
  5. Jerry Iannelli, Federal Judge Suspends Insane Florida Abortion Law After ACLU, Miami Group Sue, Miami New Times, Oct. 2, 2017
  6. Andrew Crocker, EFF Asks Court to Undo Damage Done to First Amendment in Flawed National Security Letter Ruling, Electronic Frontier Foundation, Oct. 2, 2017
  7. ACLU of Louisiana Condemns School Official’s Threats to Students’ First Amendment Rights, Sept. 29, 2017


                Tucker Carlson & Alan Dershowitz

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

  1. Janus v. American Federation of State, Municipal and County Employees
  2. Masterpiece Cakeshop v. Colorado Civil Rights Commission

Pending: Cert. Petitions 

  1. Shepard v. Florida Judicial Qualifications Commission 
  2. Muccio v. Minnesota
  3. Tobinick v. Novella
  4. Minnesota Voters Alliance v. Mansky
  5. Lozman v. City of Riviera Beach, Florida
  6. Harris v. Cooper 
  7. National Institute of Family and Life Advocates v. Becerra
  8. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  9. Livingwell Medical Clinic, Inc. v. Becerra

Cert. Denied

  1. Elonis v. United States
  2. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Denied

Next Scheduled FAN: #165: October 11, 2017.

Last Scheduled FAN: # 163Sanford Ungar Heads New Free Speech Project at Georgetown University

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