FAN 185 (First Amendment News) Nearly $2 million awarded in anti-SLAPP case involving Sheldon Adelson

The case is Adelson v. Harris (S.D., N.Y., 12 Civ. 6052 (JPO) (March 29, 2018). The matter involved a claim by “billionaire casino magnate Sheldon G. Adelson against the National Jewish Democratic Council for a 2012 online petition that stated Adelson personally approved of prostitution in his Asian casinos.” In the latest round of this case, and after trips to the Second Circuit and the Nevada Supreme Court, Mr. Adelson lost yet again.

Here are a few excerpts from Judge J. Paul Oetken’s recent order in Adelson v. Harris:

Sheldon G. Adelson

“This is a defamation action filed by Sheldon Adelson arising out of the 2012 presidential campaign. Adelson brought suit against David A. Harris, Marc R. Stanley, and the National Jewish Democratic Council (“NJDC”) (together, “Defendants”) for libel based on a publication on NJDC’s website in July 2012. This Court dismissed Adelson’s complaint in 2013, and that dismissal was affirmed by the Second Circuit following a certification of questions to the Nevada Supreme Court. Presently before the Court is Defendants’ motion for attorney’s fees and costs.”

Lee Levine (one of the lawyers for the Defendants)

“In 2013, this Court dismissed Adelson’s complaint under both Rule 12(b)(6) of the Federal Rules of Civil Procedure and Nevada’s anti-strategic litigation against public participation (“Anti-SLAPP”) statute, Nev. Rev. Stat. § 41.635–670. The Court also concluded that Defendants were entitled to reasonable attorney’s fees and costs under Nevada’s Anti-SLAPP statute, Nev. Rev. Stat. § 41.670(1). See Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013). . . .”

“The Nevada Supreme Court answered [the common law] questions [posed to it] in a manner consistent with this Court’s earlier decision. See Adelson v. Harris, 402 P.3d 665 (Nev. 2017). The Second Circuit then affirmed this Court’s decision dismissing the complaint. See Adelson v. Harris, 876 F.3d 413 (2d Cir. 2017). . . .”

“The parties have briefed Defendants’ fee request in two rounds of filings: first for the district court phase of litigation (i.e., fees and costs incurred from the beginning of the case through September 30, 2013); and second for the appellate phase (i.e., fees and costs incurred from October 1, 2013, through December 31, 2017). Each is addressed in turn. . . .”

“Defendants’ application for attorney’s fees and costs pursuant to Nev. Rev. Stat. § 41.670 is GRANTED. Plaintiff Adelson is hereby ordered by pay to Defendants the amount of $1,909,476.50 in fees and $55,716.64 in costs, for a total of $1,965,193.14.”

Counsel for Defendants

Messrs. Levine and Berlin led a team of lawyers from Ballard Spahr (formerly  Levine Sullivan Koch & Schulz). The other defense lawyers were:

Former American Icon contestant loses false-light claim

This from David L. Hudson, Jr., over at The First Amendment Encyclopedia:

Corey Clark

“Former American Idol contestant Corey Clark lost his false light claim against E! Entertainment Television, as a federal district court judge ruled he failed to show that the defendant acted with actual malice. . . .”

“Clark appeared on Season Two of American Idol and did well, making the top 10.  However, show producers disqualified him from the show after there was a report about Clark’s arrest in Kansas that he allegedly failed to disclose.”

“Clark later contended that he was romantically involved with Paula Abdul, music superstar and one of the three judges on American Idol.  Clark’s claim received widespread publicity, including a segment on ABC’s Primetime.” 

E! True Hollywood Story, a documentary series about music stars, did a story on Abdul and referenced the Clark controversy.  The documentary did not interview Clark.  However, the story did quote a USA TODAY reporter, stating: ‘At the end of the day maybe only the two of them [Clark and Abdul] know what really happened.'”

“The documentary did explain that Clark had been arrested but was cleared of the charges.” 

“Clark sued both E! Entertainment Television and Fox Broadcasting Company in federal court for two claims: (1) defamation and (2) false light invasion of privacy.   In 2014, a federal district court dismissed both claims against Fox and dismissed the defamation claim against E! Entertainment Television.   The only claim remaining was the false light invasion of privacy claim against E! Entertainment Television. . . .”

“On March 26, 2018, U.S. District Court Judge William L. Campbell, Jr. granted summary judgment to E! Entertainment Television and ruled against Clark on his false light claim in Clark v. E! Entm’t TV, LLC.  The court noted that Clark had the burden to show by clear and convincing evidence that E! Entertainment Television acted with actual malice. . . .”

Virginia’s restrictive ‘happy hour’ advertising rules challenged

Michael Carroll writing for Watchdog reports that a “restaurant owner and chef has filed a First Amendment lawsuit against the Virginia Alcoholic Beverage Control Authority, alleging that the state’s restrictions on “happy hour” advertising violate his free speech rights. Chef Geoff Tracy, a cookbook author and owner of restaurants in Virginia, Maryland and Washington, D.C., contends the rules prevent him from describing happy hour specials at his Virginia restaurant in a creative way. The Virginia ABC regulations prevent restaurant owners from listing actual prices in their advertising or from using creative phrases other than ‘happy hour.’ ‘There’s no good reason for this,’ Jonathan Wood, an attorney with the Pacific Legal Foundation in Washington, told ‘Virginia is plainly targeting speech.’ . . .”

Erica Goldberg: S. Cal. ACLU should not endorse speaker-identity discrimination

Professor Erica Goldberg

Erica Goldberg, An Open Letter to the ACLU, on Civil Liberties, In a Crowded Theater, March 21, 2018

Excerpt: “. . . [Recently, Melissa Goodman of the ACLU of Southern California wrote] an article in Variety about how California should use its tax credits to ensure more minority representation in the film industry.  That is a laudable proposal, except that it appears constitutionally suspect.”

“The First Amendment, whose protections your organization should champion above all else, does not allow the state to discriminate on the basis of speaker identity when providing benefits or meting out punishments.  Diversity and inclusion are important goals, which are fair and benefit all of us.  However, unless the government is discriminating against individuals, these goals do not implicate civil liberties.  Instead, the proposal to favor certain film studios using massive amounts of tax dollars in order to produce movies with specific content implicates the very civil liberties that give your organization its name.”

“Your nonpartisan credibility, and historically staunch devotion to protecting civil liberties, are now most needed, but seem to be less important than your political aims.   As you become more and more associated with partisan advocacy, we will lose our best defender of civil liberties.  I hope that does not happen.”

 Note: The ACLU of Southern California was invited to respond.

2018 FIRE Faculty Conference: Coming to Chicago this fall

This from  over at FIRE (March 30, 2018)

FIRE is excited to announce that our 2018 Faculty Conference will take place from Oct. 11-13 in Chicago, Illinois, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel.

If you’re a faculty member or advanced graduate student who is interested in presenting a paper or a poster at the conference, please check out the call for proposals for more details.  There is one month left to apply: we will be accepting proposal submissions through April 30!

As with last year’s faculty conference, our goal for the meeting in Chicago is to bring together faculty from a range of disciplines and institutions, who have a variety of viewpoints, to present research and discuss issues related to academic freedom and freedom of expression on campus. We encourage all interested faculty — irrespective of discipline, institution, or position — to submit a proposal.

Those accepted to present papers at the conference will receive an honorarium of $3,000, in addition to reimbursement for travel and lodging. Those presenting posters will receive reimbursement for travel and lodging.

If you are interested in attending the conference (rather than presenting), an announcement on how to apply to attend will be available later this spring. If you have any questions or would like more information, please email us at

Two New Books from Cambridge on Free Speech Abroad

Abstract: This volume explores how societies are addressing challenging questions about the relationship between expression, traditional and societal values, and the transformations introduced by new information communications technologies. It seeks to identify alternative approaches to the role of speech and expression in the organization of societies as well as efforts to shape the broader global information society. How have different societies or communities drawn on the ideas of philosophers, religious leaders or politicians, both historical and contemporary, that addressed questions of speech, government, order or freedoms and applied them, with particular attention to applications in the digital age? The essays include a wide variety of cultural and geographic contexts to identify different modes of thinking. The goal is to both unpack the ‘normative’ internet and free expression debate and to deepen understanding about why certain internet policies and models are being pursued in very different local or national contexts as well as on a global level.

Abstract: International and national armed conflicts are usually preceded by a media campaign in which public figures foment ethnic, national, racial or religious hatred, inciting listeners to acts of violence. Incitement on Trial evaluates the efforts of international criminal tribunals to hold such inciters criminally responsible. This is an unsettled area of international criminal law, and prosecutors have often struggled to demonstrate a causal connection between speech acts and subsequent crimes. This book identifies ‘revenge speech’ as the type of rhetoric with the greatest effects on empathy and tolerance for violence. Wilson argues that inciting speech should be handled under the preventative doctrine of inchoate crimes, but that once international crimes have been committed, then ordering and complicity are the most appropriate forms of criminal liability. Based in extensive original research, this book proposes an evidence-based risk assessment model for monitoring political speech.

Five Forthcoming Books 

  1. Bridey Heing, editor, Critical Perspectives on Freedom of the Press and Threats to Journalists (Enslow Pub Inc., August 15, 2018)
  2. Elizabeth C. Childs, Suspended License: Censorship and the Visual Arts (University of Washington Press, July 11, 2018)
  3. Mike Ananny, Networked Press Freedom: Creating Infrastructures for a Public Right to Hear (The MIT Press, May 4, 2018)
  4. Michael Donnelly, Freedom of Speech and the Function of Rhetoric in the United States (Lexington Books, May 15, 2018)
  5. Gina C. Torino &‎ David P. Rivera &‎ Christina M. Capodilupo & Kevin L. Nadal,‎ Microaggression Theory: Influence and Implications (Wiley, October 2, 2018)

New & Forthcoming Scholarly Articles

Professor Kyle Langvardt

Abstract: Social media platforms have emerged as formidable regulators of online discourse, and their influence only grows as more speech activity migrates to online spaces. The platforms have come under heavy criticism, however, after revelations about Facebook’s role in amplifying disinformation and polarization during the 2016 presidential election. Policymakers have begun to discuss an official response, but what they envision – namely, a set of rules for online political ads – addresses only a small corner of a much wider set of problems. Their hesitancy to go deeper is understandable. How would government even go about regulating a social platform, and if it did, how would it do so without intruding too far on the freedom of speech?

This Article takes an early, panoramic view of the challenge. It begins with a conceptual overview of the problem: what kinds of risks do online platforms present, and what makes these risks novel compared to traditional First Amendment concerns? The Article then outlines the eclectic and sometimes exotic policies regulators might someday apply to problems including false news, private censorship, ideological polarization, and online addiction. Finally, the Article suggests some high-level directions for FirstAmendment jurisprudence as it adapts to online platforms’ new and radically disruptive presence in the marketplace of ideas.


Abstract: The time has come to consider legislation that would guarantee meaningful speech rights in online spaces. This Article evaluates a range of possible approaches to the problem. These include 1) an administrative monitoring and compliance regime to ensure that content moderation policies hew close to First Amendment principles; 2) a “personal accountability” regime handing control over content moderation to users; and 3) a relatively simple requirement that companies disclose their moderation policies. Each carries serious pitfalls, but none is as dangerous as option 4): continuing to entrust online speech rights to the private sector.

* * * * 

Professor Dan T. Coenen (credit: UGA Today)

Abstract: A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny.

— An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because they cover a great deal of behavior that has nothing to do with speech, but they also often outlaw speech that triggers a violent response. To the extent these laws do so, they proscribe speech in a direct-in-effect way, in the key sense that their application depends on the communicative impact of the regulated activity.

— In contrast, the second category of generally applicable laws, which trigger only intermediate scrutiny, has nothing to do with restricting speech based on any listener reaction. In United States v. O’Brien, for example, the government relied on an across-the-board ban on draft-card destruction to prosecute a war protester who burned his card as a form of symbolic dissent. This case, the Court concluded, involved merely an “incidental” (as opposed to a direct-in-effect) burden on speech because the challenged statute covered each and every instance of draft card burning wholly apart from the impact that any such action might have on the mind of any observer.

— The third category of generally applicable laws received the Court’s attention in Arcara v. Cloud Books, Inc., which involved a challenge to an ordinance that required the closure of any place of business— in this case a bookstore—where prostitution or other “lewd” activities had occurred. Obviously, the closing of a bookstore imposed a burden on speech. But this burden did not trigger any First Amendment scrutiny because the defendants in Arcara were not (as was the defendant in O’Brien) punished for an activity that itself involved expression; rather, those defendants were punished for tolerating on-premises acts of lewdness, which did not involve speech at all. Put another way, the case involved only a “doubly incidental” burden on speech-that is, the sort of burden imposed by  a wide range of laws (including tax laws, labor laws, and health laws) that do not operate on speech itself but instead diminish the resources or capacity of would-be speakers to engage in expressive activity.

This Article develops in detail this tripartite structure for analyzing Free Speech Clause challenges to generally applicable laws. In particular, it highlights the complexity of this body of law, identifying the rich mix of exceptions to the three core rules around which the Court’s governing doctrine is organized. In addition, this Article shows that-and explains why-the Court has taken a fundamentally different approach to generally applicable laws in the free-speech and free-exercise-of-religion contexts. Along the way, the Article notes that the current Court has signaled a potential willingness to tinker with existing doctrine, including by expanding Free Speech Clause limits on generally applicable anti-discrimination laws. At the same time, this Article posits that the key features of the three-part approach toward which the Court has haltingly, but discernibly, moved over the years comports with  overarching First Amendment theory.

* * * * 

  1. Benjamin Sachs, Agency Fees and the First Amendment, Harvard Law Review (2018)
  2. Cynthia M. Ho, First Amendment Overprotection of ‘Alternative Facts’: The Case of Cognitive Biases With Pharmaceutical Marketing, SSRN (March 2018)

Berkman Klein Center Report on Harmful Speech


  Should We Regulate Video Game Violence?, Legal Talk Network (YouTube, March 30, 2018)

First Amendment Watch

Discussion on the First Amendment: Jud Campbell of University of Richmond School of Law, Nadine Strossen of New York Law School, & Stephen D. Solomon of New York University.  National Constitution Center President and CEO Jeffrey Rosen moderates.

“So to Speak” Podcasts

“Clear & Present Danger” Podcast

  • Episode 5: The Caliphate

Why did the medieval Abbasid Caliphs have almost all ancient Greek works of philosophy and science translated into Arabic? How did the long list of medieval Muslim polymaths reconcile abstract reasoning with Islamic doctrine? Who were the radical freethinkers that rejected revealed religion in favor of reason in a society where apostasy and heresy were punishable by death? And why are developments in the 11th century crucial to understanding modern controversies over blasphemy and apostasy, such as the Salman Rushdie affair and the attack on Charlie Hebdo?

Cato Video

  • Cato Institute Book Forum: Keith Whittington’s Speak Freely: Why Universities Must Defend Free Speech (featuring the author Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; with comments by Ilya Somin, Professor of Law, George Mason University; moderated by John Samples, Vice President, Cato Institute)

Cato Radio Highlights 

News, Editorials, Op-eds, & Blog Posts 

  1. Jessica Chasmar, Geraldo Rivera: Laura Ingraham boycott ‘an attack on the 1st Amendment, Washington Times, April 4, 2018
  2. Kate Briquelet, National Enquirer Publisher: It’s Our First Amendment Right to Silence Karen McDougal Over Trump, Daily Beast, April 2, 2018
  3. Ruthann Robson, Daily Read: Stormy Daniels Sues Trump’s Lawyer for Defamation, Constitutional Law Prof Blog, March 26, 2018
  4. Daniel Nazer, First Amendment and FX Triumph in “Feud” Right of Publicity Case, Electronic Frontier Foundation, March 26, 2018
  5. Ken Jost, Time for Court to Stop Abuse of First Amendment, Jost on Justice, March 18, 2018

YouTube: The First Amendment — What Limits? . . . & More


  • The First Amendment: What Are Its Limits? (Susan Benesch, director of the Dangerous Speech Project, Jennifer Peter, managing editor of The Boston Globe, and Carol Rose, executive director of the ACLU of Massachusetts, discuss contemporary First Amendment issues. Award-winning journalist and senior correspondent for WBUR’s Bostonomix Bruce Gellerman moderates.)

* * * * 

The First Amendment needs a lot of help — Dan Gilmore

* * * * 

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

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

Pending: Cert. Petitions 

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  4. Nationwide Biweekly Administration, Inc., et al v. Perez
  5. CTIA v. City of Berkeley 
  6. Harris v. Cooper 
  7. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  8. Livingwell Medical Clinic, Inc. v. Becerra
  9. Berninger v. Federal Communications Commission

Review Denied

  1. Walker v. N.Y.C. Dep’t of Educ. et al.
  2. Shepard v. Florida Judicial Qualifications Commission 
  3. Morris v. Texas (dismissed for want of jurisdiction)
  4. Connecticut v. Baccala
  5. Tobinick v. Novella
  6. Muccio v. Minnesota
  7. Elonis v. United States
  8. 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 # 184: Institute for Free Speech releases free speech index on state campaign finance laws

Next Scheduled FAN # 186: Wednesday, April 11, 2018

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