FAN 177 (First Amendment News) “Make No Law” First Amendment Podcast Series Launched

Over at Popehat a new First Amendment podcast series has been launched; it’s titled “Make No Law” and is hosted on the Legal Talk Network. The podcasts are conducted by Kenneth P. White, a criminal defense and First Amendment lawyer at Brown White & Osborn.

“In the podcast, we explore the background, personalities, and social and historical context of some of America’s most important First Amendment cases. What made Walter Chaplinsky so angry that he uttered his famous “fighting words” in New Hampshire, and why was a crowd so angry at him? Why did Mary Beth Tinker decide to wear a black armband to school? What made Richard Ceballos’ supervisors retaliate against him for raising concerns about police misconduct, and how did he fight back? Who gets to decide whether a trademark like “The Slants” is offensive to a group — members of the group, or the government?”

Kenneth P. White

“Through interviews of some of the participants, historians, and experts, primary documents read by voice actors, and commentary, Ken White will explain both what these cases mean for your rights today, and what they meant to the real people who fought for their rights to produce these decisions. Every episode will be accompanied by a post here at Popehat with links to supporting materials: cases, oral argument recordings, historical materials, and so on. As the series progresses, we hope that you will send in your First Amendment questions and your suggestions for cases to cover.

“You can get the episodes on iTunes or Google Play, Soundcloud, or at the Legal Talk Network, or listen to them through a link right here on the blog. There’s also the RSS feed.”

First two episodes: Chaplinsky & Tinker 

(In this inaugural episode White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States.)

(White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today.)

Forthcoming episodes: Ceballos Matal v. Tam 

  • Episode Three: “On The Job”:  How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces?  I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.
  • Episode Four, “Disparagement, Contempt, and Disrepute”:  I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band’s name was racist and unacceptable.

California Superior Court Upholds First Amendment Claim in Same-Sex Wedding Cake Case

This from Eugene Volokh over at The Volokh Conspiracy ( “From yesterday’s order in Dep’t of Fair Emp. & Hous. v. Miller:

“A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct. Here, Rodriguez—Del Rios plan to engage in speech. They plan celebration to declare the validity of their marital union and their enduring love for one another. The State asks this court to compel Miller against her will and religion to allow her artistic expression in celebration of marriage to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees….”

“The court cannot retreat from protecting the Free Speech right implicated in this case based upon the specter of factual scenarios not before it. SmalI-minded bigots will find no recourse in committing discriminatory acts, expecting to be sheltered from Unruh Act prohibitions by false cry of Free Speech. No court evaluates Free Speech rights against the interest of the State in enforcing public access laws in vacuum, without regard to circumstances, history, culture, social norms, and the application of common sense. Here, Miller’s desire to express through her wedding cakes that marriage is sacramental commitment between man and woman that should be celebrated, while she will not express the same sentiment toward same-sex unions, is not trivial, arbitrary, nonsensical, or outrageous. Miller is expressing a belief that is part of the orthodox doctrines of all three world Abrahamic religions, if not also part of the orthodox beliefs of Hinduism and major sects of Buddhism. That Miller’s expression of her beliefs is entitled to protection is affirmed in the opinion of Justice Kennedy in Obergefell v. Hodges (2015) wherein the Court established that same-sex marriages are entitled to Equal Protection. Therein, the Court noted: “[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

“Furthermore, here the State minimizes the fact that Miller has provided for an alternative means for potential customers to receive the product they desire through the services of another talented baker who does not share Miller’s belief. Miller is not the only wedding cake creator in Bakersfield.”

“The fact that Rodriguez-Del Rios feel they will suffer indignity from Miller’s choice is not sufficient to deny constitutional protection. Hurley [the case upheld the right of St. Patrick’s Day Parade organizers to exclude pro-gay-rights speech -EV] established that the State’s interest in eliminating dignitary harms is not compelling where, as here, the cause of the harm is another person’s decision not to engage in expression. The Court there recognized that “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are … hurtful.” An interest in preventing dignitary harms thus is not a compelling basis for infringing free speech. (See Texas v. Johnson (1989); see also Hustler Magazine, Inc. v. Falwell (1988).)”

* * * 

“I don’t think this analysis is correct, for reasons Dale and I gave in our amicus brief: While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not. (In this case, the couple selected a preexisting design, and “did not want or request any written words or messages on the cake.”) Still, I thought the opinion was noteworthy.”

What has become of Mr. Harder’s cease & desist demand?

Your publication of the false/baseless statements about Mr. Trump gives rise to, among other claims, defamation by libel, defamation by libel per se, false light invasion of privacy, tortious interference with contractual relations, and inducement of breach of contract. Charles Harder, Jan. 4, 2018

Was it a bluff? Perhaps a publicity move? Perhaps it was done in response to his impatient client’s demand for some threat of legal action? Or was it mainly an attempt to discredit the news about an insider’s look at the Trump world, both before and after the election?

One more far more question: What has become of the cease and desist demand sent by President Trump’s lawyer Charles J. Harder to Michael Wolff and his publisher Henry Holt?

Recall that on January 8, 2018, their lawyer, Elizabeth A. McNamara, refused to halt publication of Fire and Fury: Inside the Trump White House or to issue any retraction or apology. To quote Ms. McNamara: “My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”

As far as I can tell, Mr. Harder has yet to take any action beyond his January 4, 2018, letter to the president of Henry Holt and Michael Wolff.

It is unthinkably difficult to imagine a president suppressing publication of a book criticizing him. — Floyd AbramsJan. 4, 2018


→ John Santucci, Trump attorney sends Bannon cease and desist letter over ‘disparaging’ comments, ABC News, Jan. 4, 2018 (“This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent.”) (emphasis added)

Michael Wolff’s ’Fire and Fury’ sales exceed 1.7 million in third week, USA Today, Jan. 24, 2018

→ Gerry Smith, Michael Wolff Could Reap $7.4 Million From ‘Fire and Fury’ Sales, Bloomberg, Jan. 12, 2018

→ FAN 99.2, Trump on Libel Law & Freedom of the Press, February 27, 2016

Headline: “Man sues claiming First Amendment right to give cops the finger”

In a recent issue of The Hill, Morgan Gstalter reports that “an Indiana man who was ticketed for flashing a rude hand gesture at an Indiana State Police trooper filed a federal lawsuit last week claiming his constitutional rights protect his freedom of expression.”

“Mark May flashed a cop the middle finger in August after he said Indiana State Police Master Trooper Matte Ames cut him off to pull over another driver, according to the Tribune Star in Terre Haute.”

“Ames then pulled May over and gave him a ticket for provocation, a Class C infraction that carries a penalty of a fine up to $500.”

“In a lawsuit filed in the Southern District of Indiana by the American Civil Liberties Union of Indiana, May argues his gesture is protected by the First Amendment. . . .”

Video here

Interview with ACLU’s David Cole on Protecting First Amendment Freedoms 

We are second to none in defending the First Amendment. But in [the Masterpiece Cakeshop] case, we don’t think the First Amendment claims are meritorious. — David Cole

David Cole

The current issue of the DC Bar’s Washington Lawyer has an interview with David Cole titled “ACLU’s David Cole: ‘Protecting the First Amendment Is Fighting for Justice.’” Tracy Schorn conducted the interview.  Here are a few highlights:

Re Masterpiece Cakeshop v. Colorado Civil Rights Commission: “The bakery, which chose to open its doors to the public, cannot invoke a First Amendment right to discriminate. No one has to become a public accommodation, but once you make that choice, you can’t deny service to citizens because of who they are. The First Amendment would be implicated if the government singled out particular messages and either prohibited or compelled them, but that’s not what the Colorado law at issue here does: It applies to all businesses open to the public, regardless of whether they are “expressive” or not, whether they sell books or nails. And I don’t think any of us would want to live in a world in which businesses, no matter how expressive, could put up signs saying ‘We don’t serve gays’ or ‘Whites only.'”

→ Did representing Jason Kessler and the neo-Nazis at Charlottesville give you pause?These are challenging cases. When we represent someone whose point of view is diametrically opposed to ours, who seeks to undermine the rights we are trying to defend with vulnerable groups, that creates a tension for the ACLU.”

“We’re a big tent organization. We defend the rights of people to speak regardless of how offensive their views are, regardless of whether we’re in agreement with them if they’re pro-equality or anti-equality. That’s an important part of who we are—and it’s an important part of what the First Amendment is.”

→  There’s more, much more, but you’ll have to read the full interview to see iy.

Dershowitz reviews Must We Defend Nazis?

Prof. Alan Dershowitz (credit: The Harvard Crimson)

Following the release of his latest book — Trumped Up: How Criminalization of Political Differences Endangers Democracy (CreateSpace Independent Publishing Platform, August 15, 2017) — Professor Alan M. Dershowitz took to reviewing Richard Delgado and Jean Stefancic’s Must We Defend Nazis?: : Why the First Amendment Should Not Protect Hate Speech and White Supremacy (NYU Press, reprint edition, January 31, 2018). Here is how Professor Dershowitz opened his review in the Washington Post:

When I was a student during the days of McCarthyism, a book arguing for the censorship of extremist hate speech would have been titled “Must We Defend Communists?” Many of the arguments made by Richard Delgado and Jean Stefancic in “Must We Defend Nazis?” are similar to those that would have been made in my hypothetical book: Free speech is not absolute; it must be balanced against other societal values; much harm can come from communism; communists don’t support our free speech, so why should we support theirs; communism is evil, and there is no good reason to defend evil speech; communist propaganda lies at the periphery of the First Amendment, not at its core; communist speech incites violence; those who defend communist speech are complicit in the evils of communism. . . . 

Dershowitz is especially troubled by how the authors characterize Nazi hate speech:

Among the book’s most fundamental flaws is its placement of Nazi hate speech at the periphery of the First Amendment, when by any reasonable definition it sits at its very core. Nude dancing, hard-core porn, and commercial advertising may be peripheral to the political concerns of the First Amendment. Still, according constitutional protection to these genres of speech may be necessary to build a wall around the core to protect it from the slippery slope. But what could be more central than advocacy by the Nazi Party of a political program for America? Nazi speech is no more peripheral than communist speech. It may be more hateful and more dangerous, but to call it peripheral is to misunderstand the essential purpose of the First Amendment. . . . 

YouTube: Judge Kuntz interviews Strossen on Hate Speech

YouTube link here

A public conversation in Salisbury, CT, hosted by “Noble Horizons” but open to the public.

Va. L. Rev. Online Symposium on Hate Speech 

On August 11 and 12, 2017, neo-Nazis and Klansmen came to Charlottesville to hold a rally meant to assert themselves as a force in American society. That event, and the President’s reaction to it, raised the disturbing possibility that for the first time in more than fifty years, white supremacy could be a matter of debate at the highest levels of American politics. This Foreword asks what legal scholarship has to contribute in times like these. It also introduces a partial answer: a group of student and faculty pieces analyzing some of the many difficult legal questions the rally raised. — Farah Peterson

New Book: Greenhouse on the Press  & More

Linda Greenhouse, Just a Journalist: On the Press, Life, and the Spaces Between (Harvard University Press, 2017)

Abstract: “In this timely book, a Pulitzer Prize-winning reporter trains an autobiographical lens on a moment of remarkable transition in American journalism. Just a few years ago, the mainstream press was wrestling with whether labeling waterboarding as torture violated important norms of neutrality and objectivity. Now, major American newspapers regularly call the president of the United States a liar. Clearly, something has changed as the old rules of “balance” and “two sides to every story” have lost their grip. Is the change for the better? Will it last?”

Prof. Linda Greenhouse

“In Just a Journalist, Linda Greenhouse—who for decades covered the U.S. Supreme Court for The New York Times—tackles these questions from the perspective of her own experience. A decade ago, she faced criticism from her own newspaper and much of journalism’s leadership for a speech to a college alumnae group in which she criticized the Bush administration for, among other things, seeking to create a legal black hole at Guantanamo Bay—two years after the Supreme Court itself had ruled that the detainees could not be hidden away from the reach of federal judges who might hear their appeals.”

“One famous newspaper editor expressed his belief that it was unethical for a journalist to vote, because the act of choosing one candidate over another could compromise objectivity. Linda Greenhouse disagrees. Calling herself “an accidental activist,” she raises urgent questions about the role journalists can and should play as citizens, even as participants, in the world around them.”


Forthcoming Books

→ Abstract: “Supreme Court decisions involving the constitutional rights of students in the nation’s public schools have consistently been most controversial. From racial segregation to unauthorized immigration, from economic inequality to public prayer and homeschooling: these are but a few of the many divisive issues that the Supreme Court has addressed vis-a-vis elementary and secondary education. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education. It argues that since the 1970s, the Supreme Court through its decisions has transformed public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court’s decisions over the last four decades would conclude that the following actions taken by school officials pass constitutional muster: inflicting severe corporeal punishment on students without any procedural protections; searching students and their possessions, without probable cause, in bids to uncover violations of school rules; engaging in random drug testing of students who are not suspected of any wrongdoing; and suppressing student speech solely for the viewpoint that it espouses. Taking their cue from such decisions, lower courts have validated a wide array of constitutionally dubious actions, including repressive student dress codes; misguided “zero tolerance” disciplinary policies; degrading student strip searches; and harsh restrictions on off-campus speech in the internet age. Justin Driver dramatically and keenly surveys this battlefield of constitutional meaning and warns that impoverished views of constitutional protections will only further rend our social fabric.”

HCLQ Free Speech Issue (Winter 2018)

New & Forthcoming Scholarly Articles

  1. Richard Schragger, When White Supremacists Invade a City, Virginia Law Review Online (2018)
  2. Kelly Lynn Anders, The ‘Fighting Words Doctrine’ at 75: Why It Still Lacks Punch, Journal of the Kansas Bar Association, January 2018
  3. Wendy E. Parmet & Jason A. Smith, Free Speech and Public Health: Unraveling the Commercial-Professional Speech Paradox, Ohio State Law Journal (2017)
  4. Elizabeth A. Shaver, Denying Certiorari in Bell v. Itawamba County School Board: A Missed Opportunity to Clarify Students’ First Amendment Rights in the Digital Age, Brooklyn Law Review (2017)
  5. Joseph M. D’Amato, Interpreting the First Amendment and Suppressing Political Minorities, Alabama Law Review (2017)
  6. David S. Han, Middle-Value Speech, Southern California Law Review (2017)

Three New & Notable Blog Posts

Prof. Ruthann Robson

“In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida’s re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.”

“The court’s decision was on cross-motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:

“Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right. Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights.’ . . . ”


“I blogged recently (see here and here) about the contempt proceedings in the Barley House controversy, where YouTube personality FaZe Banks (Richard Bengtson) was facing a speech-restrictive court order based on a secret settlement agreement, and the threat of contempt sanctions for posting a video that allegedly violated that agreement. With the help of Cleveland lawyer Patrick Kabat (Chandra Law), I moved to intervene to get the agreement disclosed — and I’m delighted to report that the District Court just agreed with us, and filed the agreement in the publicly available court records (here):”

“[B]ecause Plaintiffs asked the Court to enforce the confidential settlement agreement, the agreement was discussed in detail during the contempt proceeding, and the parties failed to cite a single case in opposition to the Motion of Eugene Volokh to Intervene and Gain Access to a Judicial Document, nor did they indicate that disclosure of the agreement would harm them in any way, the Court hereby GRANTS the Motion (Doc #: 29). The Clerk of Court shall file the agreement as an exhibit to this Order.'”

Professor Eugene Volokh (credit: UCLA Magazine)

“Private organizations often get a permit to put on events on public streets or in a public park, and open the event to the public generally. When that happens, courts generally don’t let the police eject people who go to the event to express their own political views, even when the views criticize the organization or its patrons, and even if the organization wants the speakers ejected. The police can enforce content-neutral speech restrictions, such as limits on sound amplification. And if a group gets a permit to have a closed event, which only ticketholders can attend (especially common for events in government-run convention centers, but in principle possible even in parks or on sidewalks), the organization can select who gets the tickets. But if the event is generally open to all comers, people who come to speak can’t be ejected.”

Deferio v. City of Syracuse (N.D.N.Y. Jan. 31, 2018), offers the most recent example . . . .”

News, Editorials, Op-eds, & Blog Posts

  1. Jonathan Peters, What some reporters get wrong about the First Amendment, Columbia Journalism Review, Feb. 5, 2018
  2. Wen Fa, My speech to the Sacramento Federalist Society on MVA v. Mansky, Fa On First, Feb. 2, 2018
  3. Steven Mazie, Will the Supreme Court deal a blow to trade unions?, The Economist, Feb. 1, 2018
  4. Erica Goldberg, “Grace,” Aziz Ansari, and Katie Way: The Free Speech Dimensions, In a Crowded Theater, Jan. 18, 2018
  5. John Frank Weaver, Why Robots Deserve Free Speech Rights, Slate, Jan. 16, 2018

New Podcast on Free Speech in Ancient Athens


→Abstract: The democracy of Ancient Athens was the birthplace of equal and uninhibited speech. Or Isegoria and parrhesia to the Athenians. Jacob Mchangama guides you through how oratory was central to the idea and practice of Athenian democracy. What Athenian style free speech entailed for ordinary citizens, comedians, philosophers, and orators. How oligarchic coup d’etats twice drowned Athenian free speech in blood and repression. The extreme methods used by Demosthenes to become the greatest orator of antiquity. And of course: the trial of Socrates: Was he a martyr for free speech or an impious and seditious enemy of democracy? So the following episode is an attempt to bring to life a pivotal but often forgotten period as we embark on the first stop of what I hope will be a long journey together through the history of free speech. Stay up to date with Clear and Present Danger on the show’s Facebook and Twitter pages, or visit the podcast’s website at

Today in First Amendment History

Samuel Roth (credit: Booktryst)

Samuel Roth was a publisher who had many run-ins with the law because he specialized in erotica and unauthorized publications of copyrighted works. He was convicted on this day of distributing obscene materials in violation of federal law. He appealed his conviction to the Supreme Court, and the resulting decision, Roth v. United States, on June 24, 1957, was the most important post-World War II Court decision on whether obscenity is protected by the First Amendment.”

“Samuel Roth had a life-long career as a pornographer and served jail or prison terms several times. In the 1920s he became a pariah in literary circles for publishing an illegal bootleg version of James Joyce’s Ulysses.”

Source: Today in Civil Liberties History 

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

  1. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  2. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  3. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  4. Janus v. American Federation of State, Municipal and County Employees (argument: Feb. 26, 2018)
  5. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)

Pending: Cert. Petitions 

  1. CTIA v. City of Berkeley 
  2. Harris v. Cooper 
  3. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  4. Livingwell Medical Clinic, Inc. v. Becerra
  5. Berninger v. Federal Communications Commission

Review Denied

  1. Shepard v. Florida Judicial Qualifications Commission 
  2. Morris v. Texas (dismissed for want of jurisdiction)
  3. Connecticut v. Baccala
  4. Tobinick v. Novella
  5. Muccio v. Minnesota
  6. Elonis v. United States
  7. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

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

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 176Arizona State University to Host Major Conference on “Free Speech and Intellectual Diversity”

Next Scheduled FAN # 178: Wednesday, February 14, 2018

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