FAN 180 (First Amendment News) Cert. Petition — Does Renton v. Playtime Theatres’ Secondary Effects standard of review survive Reed v. Town of Gilbert?

J. Michael Murray

His name is J. Michael Murray. He is a criminal defense lawyer out of Ohio. He is also a First Amendment lawyer and past president of the First Amendment Lawyers Association. Mr. Murray Murray is distinguished in The Best Lawyers in America in two separate categories: First Amendment Law and White Collar Criminal Defense, both of which include cases that have taken him to courts throughout the nation.

Among other First Amendment cases, he successfully argued Free Speech Coalition, Inc. v. Attorney General of the U.S. (3rd Cir. 2016) (majority opinion per Smith, J.: “We deem it significant that the Supreme Court has never actually applied the secondary effects doctrine outside the realm of brick-and-mortar purveyors of adult sexually explicit content. We decline to do so now, because any application of the secondary effects doctrine beyond what the Supreme Court has explicitly endorsed would bring this case into direct conflict with Reed’s pronouncement that we cannot look behind a facially content-based law to a benign motive in order to shield the law from the rigors of strict scrutiny.”)

Now Mr. Murray has filed a cert. petition in the case titled Flanigan’s Enterprise, Inc. v. City of Sandy Springs (11th Cir. per curium opinion here), a case that raises some important First Amendment questions. The trhee issues presented in the case are the following:

  1. The secondary effects doctrine of Renton v. Playtime Theatres, Inc. (1986), provides that content-based regulations avowedly aimed at adverse secondary effects associated with businesses offering sexually oriented expression are to be reviewed under intermediate, rather than strict, scrutiny. Does that doctrine survive Reed v. Town of Gilbert,  (2015), which holds that facially content-based laws are subject to strict scrutiny, regardless of their content-neutral justifications?
  2. City of Los Angeles v. Alameda Books (2002), is a plurality decision addressing the evidentiary burdens under the secondary effects doctrine. If the secondary effects doctrine survives, does Justice Kennedy’s concurrence constitute the holding of that case as representing the narrowest ground supporting the judgment, as the Sixth, Seventh, Eighth, Ninth Circuits, and prior panels of the Eleventh Circuit have held, or is Justice Kennedy’s concurrence not binding precedent, as the court below concluded?
  3. Marks v. United States (1977), held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’” Under Marks:
  • may a concurring opinion qualify as the holding even if it does not share common reasoning with the plurality opinion, as the Eleventh Circuit has held? United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017) cert. granted, No. 17-155, Dec. 8, 2017, or
  • must it be “in harmony” with the plurality opinion to qualify as the holding, as the court below held? or
  • must it be a “logical subset” of the other broader opinions in the case to qualify as the holding, as the Ninth and D.C. Circuits, have held? United States v. Davis, 825 F.3d 1014, 1021 (9th Cir. 2016) (en banc); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

(ht: David Keating)

Headline: ‘Free Speech’ Suit Aims to End Twitter’s Political Censorship

This from Ian Mason at Breibart News (Feb. 23, 2018)

Marc Randazza (lead counsel for Plaintiffs)

“A group of free-speech lawyers [led by Marc J. Randazza] filed the most serious legal challenge yet to Twitter’s censorship policies Tuesday in San Francisco County Superior Court, seeking a ruling preventing Twitter from banning users purely on the basis of their views and political associations.”

“The 29-page complaint contends that, under a California legal doctrine that recognizes some private facilities as “public forums,” Twitter may not discriminate against speech on their platform based purely on viewpoint. If successful, it would be the first extension of that doctrine to internet social media platforms and could transform the way free speech is treated online. The suit became all the more relevant Wednesday as Twitter stood accused of locking out thousands of conservatives under the guise of cracking down on ‘Russian bots.'”

The genesis of the suit is Twitter’s November 2017 announcement that they would start banning and sanctioning users based on their offline behavior and associations. On December 18, 2017, Twitter, five years after their top British executive described the company as “the free speech wing of the free speech party,” made good on this threat, ‘purging’ hundreds of mostly right-wing users. Twitter’s new policy refers to association with “violent extremist groups,” and a company blog post claimed, ‘If an account’s profile information includes a violent threat or multiple slurs, epithets, racist or sexist tropes, incites fear, or reduces someone to less than human, it will be permanently suspended.’ . . .”

Former Dow Jones GC to Oversee First Amendment Clinic

From Susan DeSantis writing in the New York Law Journal: “With free speech debates raging on college campuses and journalists under attack, Cornell Law School is launching a First Amendment clinic under the leadership of former Dow Jones General Counsel Mark Jackson.”

Mark Jackson (credit: Black Tie Magazine)

“Jackson, a First Amendment expert and a 1984 graduate of the law school,  is overseeing the clinic at the request of Dean Eduardo Peñalver.  Jackson hopes the clinic — one of a growing number with such an emphasis — will have a national impact although it will primarily represent clients in upstate New York, western Pennsylvania and eastern Ohio.”

“‘We are really excited to have the Cornell program coming online in the fall.’ said Bruce Brown, a former partner in the D.C. offices of Baker & Hostetler and the executive director of the Reporters Committee for Freedom of the Press. ‘It just feels in so many different ways like our moment.'”

“The Cornell clinic and clinics launching in the fall at Vanderbilt, Duke and Arizona State law schools are needed to counter the Trump administration’s attacks on the press, meet American Bar Association requirements for experiential learning and help state and local journalists who don’t have access to lawyers, Brown said.”

“‘That is a lot of new capacity coming online and that is extremely encouraging to us who’ve been working in this area for the last couple of years,” Brown said.”

“Under the auspices of the Reporters Committee, the Cornell clinic, The Civil Liberties & Transparency Clinic at the University at Buffalo School of Law and other such clinics and nonprofits are forming a nationwide coalition to serve as a clearinghouse for journalists. The coalition is so new, in fact, that it doesn’t yet have a name. . . .”

Like father, like son

“Jackson has his father to thank [for his interest in a free press]. Paul Jackson was a journalist who founded the local newspaper, The Bellmore Chronicle and is best known for his work on The Long Island Independent. He often told his four kids—Mark was second—about his battles for the public’s right to know about school board and sewer committee meetings. Jackson vividly remembers hearing the oft-told story of how city officials had tried to close a city council meeting his father was covering. His father stood up and objected that closing the meeting was a violation of state law and the First Amendment, refusing to leave until he was escorted out. His four children were proud of their dad, who went on to work for Esquire and the New York Post. [Source: Business Edition Super Lawyers by Timothy Harper]

Hasen weighs in on ballot-box-speech-case to be argued today

Today “the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a ‘Make America Great Again’ cap or a ‘pussyhat’ to the polling place. . . .”

“Political speech is perhaps the most protected form of speech under the First Amendment, but the right to vote free of intimidation and in tranquility is also compelling. The Supreme Court recognized this point in Burson v. Freeman, which upheld against a First Amendment challenge a 100-foot campaign-free buffer zone around polling places. The case was an unusual one in that a plurality of the court applied “strict scrutiny” to the Tennessee law and still upheld the law. Strict scrutiny is usually said to be “strict in theory and fatal in fact,” but in this case, it was the former.”

“The usual stalwarts of the First Amendment, including Justices Anthony Kennedy and Antonin Scalia, concurred separately to uphold the law. Justice Scalia’s opinion was especially notable, because he recognized that polling places—and the areas around them—traditionally were “nonpublic forums,” places where the government can stop political expression for important reasons so long as the government does not discriminate among viewpoints. If Minnesota had sought to ban Tea Party paraphernalia but allowed “” T-shirts, that would have clearly been unconstitutional. . . .”

“In many ways this case is even stronger than Burson, because it involves not the area around polling places but polling places themselves, and because voting has only become more contentious in the intervening years. As a Brennan Center brief in Mansky points out, ‘Please I.D. Me’ buttons are part of a political movement raising fears of voter fraud, and such buttons can both intimidate and confuse voters and poll workers. But more generally, a voter should not have to come into the polling place to face a group of voters—or even poll workers—wearing campaign buttons or shirts. No one should feel pressure at the polling place to vote one way or another.”

“The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground. . . .”

Opposing View

George Will, With case on coerced union fees, the Supreme Court has a chance to correct itself, Washington Post, Feb. 22, 2018

ACLU’s Lee Rowland discusses campus free speech “realities and myths”

LeeRowland (Tedx Talk)

This from  Adam Steinbaugh writing for FIRE (Feb. 26, 2018) “‘My name is Lee Rowland. I’m an unabashed progressive. I’m a skeptic. I’m anti-authoritarian. For all of those reasons, I believe in a robust and indivisible First Amendment.'”

“That’s how Lee Rowland, a First Amendment attorney with the ACLU’s Speech, Privacy, and Technology Project, concludes her TEDx talk at the University of Nevada, Reno — a short discussion of the importance of free speech, on and off campus, that is well worth your time.”

“Rowland summarizes free speech issues confronting society today — from Colin Kaepernick to hate speech — and places them in the context of freedom of expression in higher education. She explains that skepticism of whether constitutional rights are equally distributed is well warranted — and not just those recognized by the First Amendment — but the answer is not to draw back on free speech rights, but instead to ‘ratchet everybody up to that same level of protection for constitutional rights.” It’s ‘our job to make sure that everybody benefits from those rights.’ . . .”

Sign Controversy in N.H. Town  

The town of Gilmanton recently warned residents who displayed these signs that they were violating local zoning rules and, potentially, state political advertising disclosure laws. (ACLU of New Hampshire)

 Casey McDermott, In Gilmanton, Lawn Sign Scuffle Turns Into Debate Over the First Amendment, New Hampshire Public Radio, Feb. 28, 2018

Seven Forthcoming Books

Marvin Kalb (YouTube)

Marvin Kalb, Enemy of the People: Trump’s War on the Press (Brookings Institution Press, September 25, 2018)

Abstract: Shortly after assuming office in January 2017, President Donald Trump accused the press of being an “enemy of the American people.” Attacks on the media had been a hallmark of Trump’s presidential campaign, but this charge marked a dramatic turning point: language like this ventured into dangerous territory. Twentieth-century dictators―notably, Stalin, Hitler, and Mao―had all denounced their critics, especially the press, as “enemies of the people.” Their goal was to delegitimize the work of the press as “fake news” and create confusion in the public mind about what’s real and what isn’t; what can be trusted and what can’t be.

That, it seems, is also Trump’s goal. In Enemy of the People, Marvin Kalb, an award-winning American journalist with more than six decades of experience both as a journalist and media observer, writes with passion about why we should fear for the future of American democracy because of the unrelenting attacks by the Trump administration on the press.

As his new book shows, the press has been a bulwark in the defense of democracy. Kalb writes about Edward R. Murrow’s courageous reporting on Senator Joseph McCarthy’s “red scare” theatrics in the early 1950s, which led to McCarthy’s demise. He reminds us of Bob Woodward and Carl Bernstein’s reporting in the early 1970s that led to President Richard Nixon’s resignation.

Today, because of revolutionary changes in journalism, no Murrow is ready at the battlements. Journalism has been severely weakened. Yet, without a virile, strong press, democracy is in peril.

Kalb’s book is a frightening indictment of President Trump’s efforts to delegitimize the American press―and put the future of our democracy in question.

Abstract: his collection of the best writing from the Free Expression Policy Project, or “FEPP” (2001-2017) highlights events and controversies that continue to resonate in American culture and law. Topics range from loyalty oaths, the Muhammad cartoons, and junk science to the FCC’s censorship of “indecency” on the airwaves, legislative efforts to restrict violent video games, Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl, the Walt Disney Company’s suppression of a Michael Moore film, the “Mickey Mouse” law extending the term of copyright, and other copyright issues involving James Joyce, Tennessee Williams, and Fantasy Baseball. From basic questions about the meaning of the First Amendment to specific issues of art censorship, copyright, “harm to minors,” and the structure of the media industry, FEPP’s news reports and commentaries provide lively narratives along with basic grounding in the ironies and complexities of free expression politics and law.

Abstract: Gun rights and control are well-trodden subjects, with prior work supporting the right of citizens to own firearms, discussing the failure of gun control efforts, or warning about or exhorting citizen gun ownership, among other things. Although social media in their many forms have only come to dominate modern U.S. life during the past decade, there has been little academic exploration of gun owner communities on the Internet and social media. How do gun owners use social media? How do they meet other gun owners online? What do they talk about as relates to guns? With a massive and well-organized collection of support material, Guns on the Internet faces these questions with an unbiased approach that seeks a foundation for mutual understanding. The book delves into the question of whether gun-related content on social media platforms should receive free speech protection under the First Amendment to the U.S. Constitution and explores the possibility of using social media to reach common ground between gun rights and gun control supporters.

Guns on the Internet is suitable for students in both undergraduate- and graduate-level courses in criminology and criminal justice as well as those interested in cultural and social movements studies in a more global context.

Forthcoming Scholarly Article — Should the Government treat the press differently? 

Abstract:  In the 2010 case Citizens United v. Federal Election Commission, the US Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to spend unlimited amounts of money independently in political campaigns. The Court rested its five-to-four decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

Professor Sonja R. West

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction—the treatment of news media corporations. The Court began by asserting that allowing regulation of corporate speakers but not of non-corporate speakers would permit the government to limit the speech of media corporations—a thought that the majority called “dangerous, and unacceptable.” The campaign finance law in question, however, included an exemption for the news media, thus protecting the rights of the press. But the Court found the media exemption to be problematic because it treated some corporations differently than others. This favoritism of media corporations, in the Court’s view, would also amount to unconstitutional speaker discrimination. To the Citizens United majority, therefore, the news media corporation example settled the question on corporate speech rights. Under this example, a campaign finance law restricting corporate spending that exempted the news media would be unconstitutional speaker-based discrimination, but a law lacking such an exemption would open the door to regulation of the news media.

But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corporation than those of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the First Amendment’s Press Clause (and not just the Speech Clause) play a role in this analysis?

In this Article, I challenge the claim that the First Amendment prohibits the government from treating the press differently than other speakers. Rather than banning such distinctions, the Press Clause traditionally has supported differential treatment of the press. History, court precedent, and legislative practice, moreover, demonstrate how favoritism of press speakers has been condoned and often encouraged.

This debate over the meaning of the Press Clause could have significant ramifications for the future of our free press. A jurisprudential drift of press rights away from protecting core press functions and toward constraining the government’s ability to recognize the unique role press speakers play in our democracy could significantly threaten the vital structural safeguards of the Fourth Estate.

New & Notable Blog Posts

  1. Heather Whitney, Search Engines, Social Media, and the Editorial Analogy, Knight First Amendment Institute (Emerging Threats Series), Feb. 2018
  2. David Posen, Straining (Analogies) to Make Sense of the First Amendment in Cyberspace, Balkinization, Feb. 26, 2018

News, Editorials, & Op-eds

David Cole & Amanda Shanor, Public-Sector Union Fees Don’t Violate the First Amendment, ACLU Blog, feb. 23, 2018

Three YouTube Posts: On Evolution of First Amendment / & Union Fees S.Ct. Case (2 posts)  

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. Walker v. N.Y.C. Dep’t of Educ. et al.
  2. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Harris v. Cooper 
  6. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  7. Livingwell Medical Clinic, Inc. v. Becerra
  8. 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 # 179Does existing First Amendment law endanger our national security and sovereignty? Prof. Hasen says yes

Next Scheduled FAN # 181: Wednesday, March 7, 2018

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