FAN 190 (First Amendment News) Seattle U. Law School’s Homeless Rights Advocacy Project Issues Report on Begging Restrictions in Washington State
An important new report has just been released by Seattle University Law School’s Homeless Rights Advocacy Project. The 105-page report is titled Begging for Change: Begging Retsrictions Throughout Washington.
The report was prepared by:
The Homeless Rights Advocacy Project researched the laws of sixty-four cities across Washington State and found 121 ordinances that prohibit or restrict begging. An overwhelming number of these ordinances punish begging as a misdemeanor, inflicting on already vulnerable people ongoing and escalating collateral consequences.
The act of panhandling, commonly known as begging, is a constitutionally protected form of speech. But Washington’s cities are increasingly enacting ordinances that criminalizebegging. The consequences of criminalizing begging are severe and include violations of First Amendment and due process rights. Indeed, these ordinances often outlaw peaceful and nonintrusive behavior protected by the First Amendment. Some advocates assert that since 2015, “100% of federal court cases have ruled bans/restrictions [on begging] are unconstitutional.”
Further, these laws do not contribute to a solution for homelessness; instead, they function to remove visible poverty and homelessness from sight. Due to the nature and penalties of these anti-begging ordinances, the debtor’s prison grows, and the cycle of homelessness continues.
Key findings include:
- The vast majority of Washington cities punish begging: 86% of surveyed cities have at least one law criminalizing begging in their municipal codes.
- 83% of these laws result in a misdemeanor if violated. Criminal convictions exacerbate homelessness.8
- Begging restrictions are proliferating: approximately 2/3 of all begging ordinances were enacted after 2001.
- Washington’s second most popular laws are “aggressive” begging restrictions.
- In the 1990s, courts began invalidating prohibitions on peaceful begging asunconstitutional restrictions on free speech. Many cities tried to circumvent this outcome by incorporating non-aggressive conduct into their so-called “aggressive begging” laws.
- Only 2% of aggressive begging ordinances turn on the specific, objectively aggressive conduct of the person begging.
- For the vast majority— 98% of aggressive begging laws—a violation can occurbased solely on a bystander’s subjective perception.
- If a bystander feels fearful or even feels compelled to give, such feelings may be enough to make begging criminal regardless of whether the person begging has done anything objectively aggressive.
- 42% of all aggressive begging ordinances rely exclusively on a bystander’ssubjective perception.
- This reliance on whether a witness “subjectively” feels fear is highly problematic in light of well-established science proving people tend to feel fear simply when viewing a homeless person regardless of that person’s conduct
LSU’s Sexual Harassment Policy Challenged in Fifth Circuit
The case is Buchanan v. Alexander (No. 18-30148, 5th Cir.), which was summarily dismissed by the District Court. The matter is now before the federal circuit court. As framed by counsel for Plaintiff-Appellant, “[t]his appeal will require the Court to interpret the law establishing limitations on a public university’s ability to terminate a tenured professor for engaging in academic speech that purportedly conflicts with anti-sexual harassment policies.”
→ Fired LSU Professor Files First Amendment Lawsuit Challenging Speech Code Championed by Feds, FIRE, Jan. 21, 2016 (Note: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, which is part of its Stand Up For Speech Litigation Project.)
On appeal, the Plaintiff-Appellant makes the following arguments:
I. Standard of Review
II. LSU’S Sexual Harassment Policy is Facially Unconstitutional
A. The First Amendment Requires Sexual Harassment Policies Targeting Speech to Be Narrowly-Framed, Precisely Defined, and Limited to Severe, Pervasive, and Objectively Offensive Behavior
- The Government Cannot Restrict Speech Merely to Avoid Offense, and Any Regulation of Speech Must Be Narrowly Focused and Clearly Defined
- Anti-Harassment Policies Are Subject to First Amendment Limits
B. The District Court Applied the Wrong Standard of Review
C. LSU’s Policy Fails to Satisfy Constitutional Scrutiny
II. LSU’S Sexual Harassment Policy was Unconstitutionally Applied to Professor Buchanan
A. Professor Buchanan’s Speech is Constitutionally Protected
1. Academic Freedom is of “Transcendent Value”
2. The District Court Erroneously Held Dr. Buchanan’s Academic Speech Was Unprotected
a. The Undisputed Record Established That Dr. Buchanan Advanced Pedagogical Reasons for Her Speech
b. The District Court Misread the Law to Support Its Distorted View of the Record
B. LSU’s Poorly-Defined Policy and Haphazard Approach Allowed Anything to Be Defined as “Sexual
C. LSU’s Termination of Buchanan Violated the First Amendment
IV. Appellees Cannot Avoid Personal Liability
→ Counsel for Plaintiff-Appellant
U. Michigan Harassment Code Challenged
Speech First, a nonprofit membership association working to contest restrictions on free speech and other civil rights at colleges and universities across the country, filed its first lawsuit today against the University of Michigan. The case is Speech First v. Schlissel et. al. The complaint was fined in the U.S. District Court for the Eastern District of Michigan. Here are a few excerpts from the complaint:
“[T]he University of Michigan (“the University”) and its officials have created an elaborate investigatory and disciplinary apparatus to suppress and punish speech other students deem ‘demeaning,’ ‘bothersome,’ or ‘hurtful.’ This Court found the University’s previous iteration of a speech code to violate the First and Fourteenth Amendments. See Doe v. University ofMichigan, 721 F. Supp. 852 (E.D. Mich. 1989). The University’s latest attempts at censorship should fare no better.”
“First, the University’s disciplinary code prohibits ‘harassment’ and ‘bullying,’ and further increases the potential penalties if such actions were motivated by ‘bias.’ All of those concepts, as the University interprets and applies them, can capture staggering amounts of protected speech and expression. For example, the University defines ‘harassment’ as ‘unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual.’ A student can thus be subject to significant penalties (up to and including expulsion) if another student perceives his or her speech as ‘demeaning’ or ‘bothersome.’ Under this regime, the most sensitive student on campus effectively dictates the terms under which others may speak. The University’s expansive and amorphous prohibitions on ‘harassment,’ ‘bullying,’ and ‘bias-related misconduct’ are having—and will continue to have—a profound chilling effect on protected expression, and are void for vagueness due to the utter lack of clear notice about the line between permissible and prohibited conduct.”
“Second, the University has created a ‘Bias Response Team’ (BRT) that receives complaints of ‘bias’ and ‘bias incidents’ from offended students and is tasked with investigating and punishing those who commit such offenses. According to the University, “[b]ias comes in many forms,” can be intentional or unintentional, and “can be a hurtful action based on who someone is as a person.” In determining whether a bias incident has occurred, “[t]he most important indication of bias is your own feelings.” As a result, a student whose speech is seen by another student as ‘hurtful’ to his or her ‘feelings’ may receive a knock on the door from a team of University officials threatening to refer the student to formal disciplinary authorities unless he or she submits to “restorative justice,” “individual education,” or ‘unconscious bias training.’ The BRT and its highly subjective definitions of ‘bias’ and ‘bias incident’ pose a grave threat to free expression at the University, and are unconstitutional under the doctrinesof overbreadth, vagueness, and prior restraints. . . .”
Law Review Symposium: “Truth, Lies, and the Constitution”
The University of Colorado Law Review has just published its symposium issue that features the papers presented at the 2017 Rothgerber Constitutional Law Conference on “Truth, Lies, and the Constitution.”
- James Weinstein, Climate Change Disinformation, Citizen Competence, and the First Amendment
- Catherine J. Ross, Incredible Lies
- B. Jessie Hill, B. Jessie HillSex, Lies, and Ultrasound
- Helen Norton, Government Lies and the Press Clause
- Carla F. Fredericks & Jesse D. Heibel, Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause
- Christina E. Wells, Free Speech Hypocrisy: Campus Free Speech Conflicts and the Sub-Legal First Amendment
- Mark Spottswood, Truth, Lies, and the Confrontation Clause
- David S. Han, Categorizing Lies
- Alan K. Chen & Justin Marceau, Developing a Taxonomy of Lies Under the First Amendment©
- Gregory Klass, The Law of Deception: A Research Agenda
- Seana Shiffrin, Speech Matters: On Lying, Morality, and the Law (2016)
CAMPAIGN FINANCES CASES CONTINUE TO BE IN THE NEWS
I. Court denies cert. in campaign contributions case
“The Federal Election Campaign Act imposes limits on the amounts that an individual may contribute to a candidate for federal office. 52 U.S.C. §30116(a)(1)(A). Those contribution ceilings, known as FECA’s base limits, aim to prevent the appearance or actuality of corruption associated with large campaign contributions to federal office holders and candidates.” Those limits were upheld by the Court of Appeals for the District of Columbia sitting en banc. Yesterday, the Supreme Court denied cert. in that case, Holmes v. Federal Election Commission.
II. Headline: “Court ruling could prompt more transparent campaign spending”
This from Rick Hasen over at the Election Law Blog:
“The impact of the decision — which could have implications for how precisely political committees such as President Donald Trump’s re-election campaign and the Democratic National Committee have to detail their spending — will rest on how the FEC chooses to apply it, several campaign finance experts said….”
“The decision Friday involved three staffers from the 2012 presidential campaign of Ron Paul, R-Texas. The Paul staff members — Jesse Benton, John Tate and Demetrios Kesari — were convicted in 2016 of charges connected to $73,000 in payments to an Iowa state senator who, in exchange for the money, switched his Republican presidential primary endorsement from former Rep. Michele Bachmann, R-Minn., to Paul shortly before the Iowa caucuses.”
“The three men made the payments to the state senator, Kent Sorenson, via a third-party video production company. The court said the video production company payment was really a ruse designed to hide the fact that the campaign money was destined for Sorenson, who last year began servingprison time stemming from his bribe acceptance.”
“Lawyers for Benton, Tate and Kesari argued that the law, and FEC precedents, don’t prohibit a campaign paying a vendor who then pays a subcontractor, even if campaign finance reports only show the name of the original vendor. Prosecutors said it was illegal to hide the purpose of the payments, which were described as “audio/visual expenses,” when they were really made in exchange for Sorenson’s endorsement, and the circuit court’s opinion said that was a factor.”
III. Headline: “9th Circuit Denies Rehearing en banc in Montana Contribution Limits Appeal”
This from VoxPPLI: “It’s been six months since a three-judge panel of the Ninth Circuit Court of Appeals, on a 2-1 vote, upheld Montana’s right to limit campaign contributions. After Citizens United, the only governmental interest strong enough to over-ride the First Amendment is quid pro quo corruption or the appearance of corruption, and the government had to show “objective evidence” of that to justify a limit on speech. See McCutcheon v. FEC (2014); Citizens United v. FEC (2010).”
“The question in Lair was what was ‘objective evidence’ of quid pro quo corruption: was evidence about lobbying or campaign contributions enough to show corruption, even though the Supreme Court held in Citizens United and McCutcheon that “ingratiation” or “access” was not corruption or its appearance? . . .”
“The original panel decision last October ruled that, to prove “objective evidence” of corruption, Montana only had to show objective evidence of lobbying activity or campaign contributions. [Recently], the entire Court of Appeals refused to rehear the case en banc. . . .”
The Case: Lair v. Warden (9th Cir., en banc, May 2, 2018) ( Judges Ikuta, Callahan, Bea, M. Smith & N.R. Smith, dessenting from denial of rehearing en banc)
Floyd Abrams on the “Right to be Forgotten”
In a recent New York Times op-ed, Floyd Abrams discussed a decision a few weeks ago by the English High Court concerning the “right to be forogtten” and contrasted that ruling with our First Amendment jurisprudence.
Hugh Hefner Foundation’s 2018 First Amendment Award Recipients
“The Hugh M. Hefner Foundation is pleased to announce its 2018 First Amendment Award winners, honoring those who have made significant contributions to upholding and bringing to life First Amendment rights.”
“Christie Hefner established the Awards in 1979, in conjunction with Playboy Magazine’s 25th anniversary, to honor individuals who fought to protect and enhance First Amendment rights for all Americans.”
“The awards will be presented at a ceremony and reception with the winners and judges on June 4, 2018 at the Newseum in Washington D.C.”
“This year’s Lifetime Achievement Award will be bestowed upon Joan E. Bertin, longtime Executive Director of the National Coalition Against Censorship (NCAC), who for 20 years was a leader and activist for the organization and responsible for its tremendous growth over the years. She receives a Hugh M. Hefner First Amendment Award for her commitment of decades-long defense of human freedoms of thought, inquiry and expression in all forms, including the media, arts, video games, and books. . . .”
The other winners are:
- Simon Tam (Arts & Entertainment), the leader of the Asian-American rock band, The Slants.
- Laura Kipnis (Book Publishing) is a cultural critic whose 2017 book, Unwanted Advances: Sexual Paranoia Comes to Campus, argues that the climate of overblown accusation and sexual hysteria on American campuses is setting back gender progress, rather than addressing the realities of assault and harassment.
- Allison Stanger (Education), is a liberal Professor of International Politics and Economics at Middlebury College. When a student group invited conservative social scientist, Charles Murray, to speak on campus, Stanger supported the event despite her opposition to the policy recommendations in Murray’s The Bell Curve. . . .
- Jamie Kalven (Journalism), an independent journalist who broke the story of the fatal 2014 police shooting of 17-year-old Laquan McDonald in Chicago and subsequently resisted a subpoena demanding he reveal his source.
National Geograhic Series on Political Correctness
→ The Age of Outrage, America Inside Out with Katie Couric, National Geographic, May 2018
On college campuses and in small towns, Katie Couric talks with controversial speakers and student organizers about the idea of political correctness.
Forthcoming Books on Saving Press Freedoms & Regulating Television
- David E. McCraw, Truth in Our Times: Inside the Fight to Save Press Freedom in the Age of Alternative Facts (All Points Books, March 12, 2019)
- Cynthia Curtis, The Indecent Screen: Regulating Television in the Twenty-First Century (Rutgers University Press, January 7, 2019)
Abstract: The Indecent Screen explores clashes over indecency in broadcast television among U.S.-based media advocates, television professionals, the Federal Communications Commission, and TV audiences. Cynthia Chris focuses on the decency debates during an approximately twenty-year period since the Telecommunications Act of 1996, which in many ways restructured the media environment. Simultaneously, ever increasing channel capacity, new forms of distribution, and time-shifting (in the form of streaming and on-demand viewing options) radically changed how, when, and what we watch. But instead of these innovations quelling concerns that TV networks were too often transmitting indecent material that was accessible to children, complaints about indecency skyrocketed soon after the turn of the century.
Chris demonstrates that these clashes are significant battles over the role of family, the role of government, and the value of free speech in our lives, arguing that an uncensored media is so imperative to the public good that we can, and must, endure the occasional indecent screen.
New & Forthcoming Scholarly Articles
→ Jack Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, UC Davis Law Review (2018 forthcoming)
Related — Jack Balkin, “The First Amendment in the Second Gilded Age – The 2018 Mitchell Lecture” (video here)
- Philip M. Napoli, What If More Speech Is No Longer the Solution? First Amendment Theory Meets Fake News and the Filter Bubble, Federal Communications Law Journal (2018)
- Dan T. Coenen, Free Speech and the Law of Evidence, Duke law Journal (forthcoming, 2018)
- Matthew Edward Carey, NonConsensual Pornography: Prevention is Key, University of Colorado law Review (2018)
- Jesse Snyder, Saving Campaign-Finance Reform Without Amending the Constitution: The Promise of the Forgotten Petition Clause of the First Amendment, New York University Review of Law & Social Change (forthcoming, 2018)
- Caitlin Jokubaitis, There and Back Again: A Vindication of the Listener’s Interests in Regulating Targeted Advertising in the Internet Information Economy, Columbia Journal of Law & the Arts (2018)
New & Noteworthy Blog Posts
- Eugene Volokh, Arkansas Judge Issues Temporary Restraining Order Against Allegedly Libelous Political Ad, The Volokh Conspiracy, May 14, 2018
- Steven D.Schwinn, Seventh Circuit Rejects Challenge to Erogenous Zoning, Constitutional Law Prof Blog, May 7, 2018
News from First Amendment Encyclopedia
- David Hudson, Public school can exclude band vendor from “Parent Night”- event not a traditional public forum, First Amendment Encyclopedia, May 13, 2018
- David Hudson, Another public employee ‘Garcettized‘ in Chicago cop case, First Amendment Encyclopedia, May 12, 2018
- David Hudson, Washington Supreme Court rejects restrictions under First Amendment vagueness doctrine, First Amendment Encyclopedia, May 12, 2018
YouTube: Erwin Chemerinsky onFree Speech & College Campuses
- In Studio with Berkeley Law School Dean Erwin Chemerinsky: Defining the Limits of Free Speech (League of Women Voters, Stanford Law School , April 2018)
“So to Speak” Podcast — ‘Lust on Trial’ with Amy Werbel
Anthony Comstock is a name that has become synonymous with censorship in America.
In 1873, he founded the New York Society for the Suppression of Vice, and his career led to the confiscation or incineration of more than 3 million pieces of allegedly “obscene, lewd, or lascivious” material.
On this episode of So to Speak, we speak with Fashion Institute of Technology Professor Amy Werbel about her new book, “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,” and the legacy of Comstock’s “Comstockery.”
- The University of New Hampshire earns FIRE’s top rating for free speech, FIRE, May 14, 2018
- Brooke Butler, Judge rules that restrictions placed upon Ocean City performers infringes on first amendment rights, 47/ABC, May 14, 2018
- Kenneth Lovett, NRA slapping Cuomo with lawsuit over blacklisting campaign, violating First Amendment rights, Daily News, May 11, 2018
- Scott Casleton, It’s time for liberals to get over Citizens United, Vox, May 7, 2018
- Adam Candeub & Mark Epstein, Platform, or Publisher?, City Journal, May 7, 2018
Today in First Amenment History: Judge Hand & Anthony Comstock //Passage of Sedition Act // 69th Anniversary of Terminiello Case
1914: Judge Learned Hand Rebukes Anthony Comstock
This from Today in CivilLiberties History:
“In the midst of a criminal trial in New York City, Judge Learned Hand, who would go on to become of the most famous judges in American history, rebuked anti-obscenity crusader Anthony Comstock. After Comstock had interrupted the trial several times, Hand told him, “I do not wish to hear any more.” It was a rare rebuke for Comstock, who always always found judges sympathetic to his ‘anti-smut” crusade.'”
“Comstock was the author of the Comstock Act, the most powerful censorship law in the United States from its enactment on March 3, 1873 until about the 1960s, when courts limited its application in a series of decisions. Comstock founded the New York Society for the Suppression of Vice, which was the most aggressive censorship organization from the 1870s until the 1930s. . . .”
1918: Sedition Act Passed
This from Today in CivilLiberties History:
“The 1918 Sedition Act amended the 1917 Espionage Act (passed on June 15, 1917), greatly expanding the power of officials to suppress speech and writings critical of the government (see the crucial part of the new law below). It became another instrument of repression of dissent during World War I, although the Espionage Act had already been a powerful weapon against anti-war dissenters.”
Terminiello Case Handed Down
This from Today in CivilLiberties History:
“Arthur Terminiello was a suspended Catholic priest in Chicago who was active in opposing racial integration of Chicago neighborhoods. Disorder broke out when he gave a racist speech to an audience of 800 (with another 1,000 people outside). He was arrested and convicted of breach of the peace.”
“On appeal, in Terminiello v. Chicago, the Supreme Court on this day reversed his conviction, holding that his speech was protected by the First Amendment.”
“This case was one of several incidents in post-World War II Chicago involving conflict and even riots over racial integration. In Beauharnais v. Illinois, decided on April 28, 1952, the Supreme Court rejected free speech arguments and upheld a state “group libel” law. Group libel laws prohibit offensive remarks about racial, ethnic, religious, or other identifiable groups. . .”
Out & About — Strossen & Corn-Revere
2017-2018 Term: First Amendment Free Expression Cases
- Benisek v. Lamone (argument: March 27, 2018)
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
Pending: Cert. Petitions
- Contest Promotions, LLC., v. City & County of San Francisco
- Flanigan’s Enterprise, Inc. v. City of Sandy Springs
- Nationwide Biweekly Administration, Inc., et al v. Perez
- CTIA v. City of Berkeley
- Harris v. Cooper
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Berninger v. Federal Communications Commission
- Holmes v. Federal Election Commission
- Walker v. N.Y.C. Dep’t of Educ. et al.
- Shepard v. Florida Judicial Qualifications Commission
- Morris v. Texas (dismissed for want of jurisdiction)
- Connecticut v. Baccala
- Tobinick v. Novella
- Muccio v. Minnesota
- Elonis v. United States
- 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
- MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
Last Scheduled FAN # 189: Justice Alito’s free speech jurisprudence continues to draw scholarly attention
Next Scheduled FAN # 191: Wednesday, May 23, 2018