How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic. — Elizabeth ‘Libby’ Locke
Headline: “New York Times, NBC, and ‘60 Minutes’ Bigwigs Hired These Media Assassins to Fight #MeToo Stories”
“One of television’s most powerful men, 60 Minutes Executive Producer Jeff Fager, hired a law firm that boasts about “killing stories” for a Washington Post investigation into him, three sources familiar with the matter told The Daily Beast.””The story was a deep dive into what CBS managers knew about former anchor Charlie Rose’s alleged sexual misconduct, but due to the aggressive tactics of law firm Clare Locke, the sources said, the story was ‘effectively neutered.'”
“Clare Locke is the creation of husband and wife team Tom Clare and Elizabeth ‘Libby’ Locke. ‘Some of Libby’s biggest defamation ‘wins’ are stories the public will never hear about,’ her website says. They have litigated against Rolling Stone, TheNew York Times, Katie Couric, CNN, and Gawker, to name a few.”
“Clare Locke was ‘able to slow it down and in effect change the dynamic,’ a person with knowledge of the situation told The Daily Beast. The law firm sent The Washington Post several letters threatening litigation, the sources said. As a result, other reporting about [60 Minutes Executive Producer Jeff] Fager was left out of the published story, three sources said.”
“Tom “Clare told The Daily Beast: ‘We’re proud of the pre-publication work we do to make sure that media reports about our clients are truthful and accurate.'”
Theodore J. Boutrous Jr. (credit: Zimbio)
“‘There’s is a new spin on defamation practice. They are bragging about killing stories. They are not focusing on litigation but the pre-publication element to squash a story,’ said Theodore J. Boutrous Jr., partner at the Gibson Dunn law firm and a vocal First Amendment advocate.”
“[W]e think the [Janus v. AFSCME] majority—and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar —erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of—likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong.
“The most striking thing about Justice Alito’s majority opinion–to me, anyway–is that the Court majority was willing (quite eager, in fact) to overrule such a well-entrenched precedent without providing virtually any basis for thinking that the fee deduction “abridges” anyone’s actual speech. As many scholars have long explained (including my colleagues Greg Klass and David Luban, as well as, more recently, Eugene Volokh and Will Baude), Justice Alito is right that “Abood was poorly reasoned“–but in the other direction. The original sin of Abood was not the Court’s failure to prohibit agency fees for collective bargaining functions, but instead in holding that employee deductions can implicate the Free Speech Clause in cases where there’s no compelled association (no one is required to join the union), no possibility of any misattribution of the organization’s speech to the objecting payers, and the payment in question is not triggered by the objector’s own speech (as in Tornillo and PG&E).”
“This post is the first in a series on the uses and abuses of the First Amendment as a deregulatory tool – that is, the First Amendment’s potential to undermine regulatory schemes that protect workers, consumers, voters, investors, and more. The format is borrowed from Slate’s Supreme Court Breakfast Table. The participants are Nikolas Bowie, Caroline Mala Corbin, Catherine Fisk, and Charlotte Garden.”
Professor Jedediah Purdy(credit: Duke University School of Law)
“Once we see that any constitutional vision involves some relationship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners, but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy.”
“This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court’s decision invalidating public union fair share fees in Janus v. AFSCME, Council 31.
“Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000).”
3-D Guns & Free Speech
“Washington and eight other states have sought a TRO and prior restraint on information posted on the internet. Regardless of your opinions on gun control, this case would set a dangerous 1st Amendment precedent.” — Josh Blackman
Professor Josh Blackman (credit: The Business Journals)
“Pennsylvania isn’t the only state trying to bar access to 3-D printed guns. Washington Attorney General Bob Ferguson announced Monday he is leading a lawsuit in eight states and the District of Columbia to block a court action that would let people download plans for untraceable 3-D printed weapons. This lawsuit [was] filed in federal court in Seattle.”
Judge Robert Lasnik (credit: Bar Bulletin)
“‘This is a free speech case. This isn’t a gun case,” said Professor Josh Blackman, who challenged Pennsylvania’s efforts to block the downloads. ‘One state cannot censor the speech of a citizen in another state.'”
→ Michael D. Shear, Tiffany Hsu & Kirk Johnson, Judge Blocks Attempt to Post Blueprints for 3-D Guns, New York Times, July 31, 2018 (“Judge Lasnik said in his ruling that there were ‘serious First Amendment issues’ that would need to be worked out later in court, but that for the moment, there should be ‘no posting of instructions of how to produce 3-D guns on the internet.’ The judge set a follow-up hearing for Aug. 10 in his courtroom in downtown Seattle.”)
→ “We are disappointed in this ruling, which will result in a global injunction on the freedom of speech” Professor Blackman told FAN.
David Cole: “Liberals, Don’t Lose Faith in the First Amendment”
In an op-ed in the New York Times, the ACLU’s national legal director David Cole writes:
“Have conservatives hijacked the First Amendment?”
“Critics are increasingly making this claim, maintaining that under Chief Justice John G. Roberts Jr., the First Amendment, once an important safeguard for progressive speech, has become a boon to corporations, conservatives and the powerful.”
“But in most instances, the First Amendment doesn’t favor speech of the right or the left; it simply takes the government out of the business of controlling speakers by virtue of what they say. It often empowers the powerless. And most important, it helps check official abuse. . . .”
“The fact that conservatives benefit from the First Amendment is not something to bemoan. It is part of the constitutional bargain. It simply means the First Amendment is operating as it should, neutrally preserving the lifeblood of democracy.”
Antonin Scalia Law School About to Launch Free Speech Clinic
George Mason University’s Antonin Scalia Law School is about to launch a legal clinic dedicated to defending freedom of speech.
The Free Speech Clinic is one on the primary programs of the Liberty & Law Center, whose mission is to create greater awareness of the law’s role in promoting and protecting liberty.
Law students enrolled in the new Free Speech Clinic will earn academic credit representing clients whose free speech rights are under attack. In order to provide students a true practice experience, the Clinic’s work will be devoted to representing parties or supporting their attorneys rather than filing friend of the court briefs.
Professor JoAnn Koob
Center Director JoAnn Koob says “through the Free Speech Clinic, we plan to represent underrepresented clients and issues, in order to be truly impactful.”
The Center is also hosting a symposium on the 150th Anniversary of the Fourteenth Amendment on September 21st.
“So to Speak” Podcast: Free speech at the U.S. Supreme Court
On this episode of So to Speak: The Free Speech Podcast, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.”
The guests on the show are:
Paul Sherman: Senior attorney, Institute for Justice
Robert Corn-Revere: Partner, Davis Wright Tremaine
Walter Olson: Senior fellow, Cato Institute
YouTube: Robert Post on Adacemic Freedom & Speech on Campus
*Benisek v. Lamone (Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.)
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. — Fourth Amendment claim sustained).
Free-Speech Related Cases: Cert. Denied
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?)