Author: Ronald K.L. Collins

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FAN 145.1 (First Amendment News) First Amendment Society to Host The Slants @ Flying Dog Brewery

The Slants (credit: KGW)

On Sunday, April 16th at 6.00 p.m., The First Amendment Society will host the rock group whose case is waiting to be decided by the Supreme Court — yes, The Slants. They are the all-Asian American dance-rock band (music video) whose request to trademark their name was denied by the Patent and Trademark Office. The Portland-based band will perform “in a very casual setting” — the Flying Dog Brewery’s tasting room.

The case: Lee v. Tam (transcript of oral arguments)

Federal Circuit Court opinion here

Complete hyperlinked list of briefs here

“We’re rooting for Simon Tam because it is beyond crazy for bureaucrats to tell an all Asian-American band that they are disparaging themselves by naming their band The Slants, and therefore the PTO won’t trademark the name.  Simon should be allowed to name his band whatever they hell he wants,” said Jim Caruso, CEO of Flying Dog Brewery. “And we’re thrilled,” he added, “to host The Slants at the brewery because they are one seriously talented band!”

Flying Dog’s CEO Jim Caruso

Related Items 

  • Malcom L. Stewart, Deputy Solicitor General,  Department of Justice, counsel for Petitioner
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Alan Morrison Interviews Justice Stephen Breyer

Professor Alan Morrison

If you have yet to see it, the current issue of the Journal of Legal Education contains an interview Professor Alan Morrison did with Justice Stephen Breyer. The interview is from the January 7, 2016 annual meeting of the American Association of Law Schools. Here are a few excerpts from the transcript of that exchange.

  • Morrison (three things I won’t ask) When I was told, Justice Breyer, that we were going to have this conversation I said there were three things we were not going to talk about: 1) cameras in the courtroom; 2) collegiality among the members of the Court; and 3) the presidential election. . . .
  • Justice Breyer (On why he writes books): I was a professor for a long time. I wouldn’t have been in that job, and you wouldn’t be in your jobs unless you like explaining things to people. Isn’t that true? We learn things, and you like to explain them. We can’t control it if they want to benefit or not from what we explain—that’s their problem. But, my goodness, that’s what we do. So stop me before I write again! . . . . The best way for me to do it—as is often the best way for you to explain law in general to a  rst-year class—is to take a subject and go through the whole thing. What you are doing in teaching that subject, you are really teaching something about law, you’re teaching something about American life, and you’re teaching something about how we live today, yesterday, tomorrow in this country. All right, I’ll try. And so I’ve written three books about the Court.
  • Justice Stephen Breyer (credit: The Nation)

    Alan Morrison (on the Steel Seizure Case): When you discuss the Youngstown case in your book, you spend a lot of time talking about the backstory. Do you think that law professors should spend more time talking about the backstory in cases when they’re trying to explain what the outcome is? . . . In a lot of other cases in the book, you talk about things that don’t readily appear in the opinion, or you’ve got to dig for them, and really did in influence the outcome. I’ve always thought that, for example, in Youngstown, the fact that Truman could have stopped the strike by letting the steel companies increase their prices the next day always had a bearing on the willingness of the Court to go along with Truman.

  • Justice Breyer (response): Truman was told by his people in charge—Charlie Wilson, electric Charlie—he was told that if you do this and break your price controls, you will see prices going up all over America, and that’s going to create a pretty bad in ation, which we don’t want at the time of the Korean War. So yeah, maybe, maybe not. I mean, the story there to me shows there’s nothing obvious. Truman’s decision wasn’t that unreasonable, in my opinion. But the Court did think that. Now why tell the backstory? There, I think the backstory is important. Why is it important? There might not be an ERISA case, probably isn’t, but it probably is there. I think the truth of that area of the law was well said by Justice Jackson. He said—I’ve had to look up a few of these, as many of us have—he says, “When you look to see what the founders thought” (and I would add to that “what prior cases hold in this big area, security versus the inherent powers of the President”) “when you look to see what the President said, what the founders thought… it’s like Joseph interpreting the dreams of Pharaoh.” Yeah, that’s right. I mean, you try it. We had a case not too long ago that was something like that, that was the case of the President’s recess appointment power. What law is there on that? All I can say is, no matter how little you think there was, there was still less than that. . . .
  • Morrison (on judicial interpretation): I’d like to talk about your approach to interpretation. [In your book] you say you use “text, history, precedent, purposes and values, and consequences.” Is there anything you don’t use?
  • Justice Breyer (response): . . . Well, we’re a statutory court. We deal with statutes, and most courts do now. And we’re interpreting a text, we’re interpreting some words on a piece of paper. And there are, at least in our Court, several different interpretations that are pretty difficult to say which is which. We take cases where lower courts have come to different conclusions on the same matter of law. They’re good judges, but they’ve reached different conclusions as, in all likelihood, there are going to be different reasonable interpretations of those words. I do believe all judges—if you look into it, I think all judges do, in fact, use those six factors.The first thing they look to is the text. The text doesn’t always answer the problem; I think it usually doesn’t in our Court. But if the text says fish, that does not mean a carrot. A carrot is not a fish. The text does put limits on what you can say. And history, tradition—what’s res ipsa loquitur, I mean, what is habeas corpus? Indeed. And what was the history from which this statute emerged? Indeed. Precedent. Again, the precedent doesn’t answer the question, normally, because, if it did, why is this case here? Consequences, I think, are very important. Not any consequences in the world. I want to know purposes  first. There was some human being who wrote those words. Why? What was the object? Given the statute, what was the object? Purposes. They always have a purpose, those words.
  • Breyer (re interpretation: history & text vs purposes & consequences): . . . I think the differences between us within the Court, insofar as they’re general, are often a question of how much weight you tend, over time, to put on purposes and consequences compared with tradition, history, texts, and precedents. . . . There are risks on both sides, and there are arguments on both sides. And we’ll talk about it—it turns up, those differences will often turn up in individual cases, but I think those kinds of differences really play a much greater role in reaching di erent results than anything that would normally be called politics. . . .
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The Mind of the Law . . . & the New Intelligence

Jason Koebler (credit: US News & World Report)

Jason Koebler has just published an article in The Atlantic entitled the “Rise of the “Robolawyers: How legal Representation Could come to Resemble TurboTax.” Here are a few highlights:

  1. Handicapping Lawsuits: “For years, artificial intelligence has been automating tasks—like combing through mountains of legal documents and highlighting keywords—that were once rites of passage for junior attorneys. The bots may soon function as quasi-employees. In the past year, more than 10 major law firms have “hired” Ross, a robotic attorney powered in part by IBM’s Watson artificial intelligence, to perform legal research. . . .”
  2. Chatbot Lawyers: “Technologies like Ross and Lex Machina are intended to assist lawyers, but AI has also begun to replace them—at least in very straightforward areas of law. The most successful robolawyer yet was developed by a British teenager named Joshua Browder. Called DoNotPay, it’s a free parking-ticket-fighting chatbot that asks a series of questions about your case—Were the signs clearly marked? Were you parked illegally because of a medical emergency?—and generates a letter that can be filed with the appropriate agency. So far, the bot has helped more than 215,000 people beat traffic and parking tickets in London, New York, and Seattle.  . . .”
  3. Minority Report: “. . . .In many states, judges use software called compas to help with setting bail and deciding whether to grant parole. The software uses information from a survey with more than 100 questions—covering things like a defendant’s gender, age, criminal history, and personal relationships—to predict whether he or she is a flight risk or likely to re-offend. . . .”
  4. An Explosion of Lawsuits: “Eventually, we may not need lawyers, judges, or even courtrooms to settle civil disputes. Ronald Collins, a professor at the University of Washington School of Law, has outlined a system for landlord–tenant disagreements. Because in many instances the facts are uncontested—whether you paid your rent on time, whether your landlord fixed the thermostat—and the legal codes are well defined, a good number of cases can be filed, tried, and adjudicated by software. Using an app or a chatbot, each party would complete a questionnaire about the facts of the case and submit digital evidence. ‘Rather than hiring a lawyer and having your case sit on a docket for five weeks, you can have an email of adjudication in five minutes,’ Collins told me. He believes the execution of wills, contracts, and divorces could likely be automated without significantly changing the outcome in the majority of cases. . . .”

There’s more in the Koebler piece, including a “Brief Chronicle of Legal Technology” — so check out the full article.

Forthcoming: Related Works 

  • Coming next year from Cambridge University Press: Collins & Skover, Robotica: Speech Rights & Artificial IntelligenceThe book (the main text of which is now complete) will include commentaries by Ryan CaloJane Bambauer, James Grimmelmann, Bruce Johnson, and Helen Norton along with a rejoinder by the authors.
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FAN 145 (First Amendment News) David Cole: “Does anyone believe that the ‘free marketplace of ideas’ is functioning?”

In a recent issue of the New York Review of Books, the ACLU’s David Cole reviewed:

David Cole

“‘Civil liberties once were radical.’ So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, ” writes Cole. “By 1938,” he adds, “Roger Baldwin, the ACLU’s executive director, proclaimed that the ACLU had ‘no ‘isms’ to defend except the Bill of Rights.’ The ACLU had shifted its focus from labor’s struggle for economic justice to a defense of the ‘neutral’ rights of speech and association, rights that could be invoked not just by individual workers and unions but by Henry Ford and big business. As Baldwin put it one year later, ‘We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.'”

“Sam Lebovic tells a related story in [his book]. In his account,” Cole notes, “American constitutional law has favored a classical liberal ‘freedom of the press,’ which stresses the importance of staving off state censorship, over ‘freedom of the news,’ a concept formulated by Franklin Delano Roosevelt, which envisions the state working proactively to ensure access to information against concentrated media ownership. Lebovic argues that the liberal conception of free speech and a free press, founded on the ‘free marketplace of ideas,’ is and always has been inadequate to address the threats to ‘freedom of the news,’ including not just the power of media moguls, but also the consequences of the Internet and the state’s over-reliance on secrecy.”

In a world where claims of “fake news” fill the airwaves, Cole asserts that “following Donald Trump’s election, on a campaign that relied on outright lies and stubborn denials of the truth, does anyone believe that the ‘free marketplace of ideas’ is functioning?” Then again, he stresses that “the inauguration of Donald Trump has dramatically reinforced the continuing importance of traditional core First Amendment rights.”

We are neither anti-labor nor pro-labor. With us it is just a question of  going wherever the Bill of Rights leads us. — Roger Baldwin (1940)

A new focus — look beyond the courts 

We were weened in an era when courts were often seen as the great defenders of equality. Even so, Cole invites his readers to reassess that reliance: “if we are to attain a more egalitarian exchange of ideas, it will be more likely through the political rather than the judicial branches.”

And as more and more liberals urge government intervention in the free speech arena, Cole counsels caution: “empowering the state to correct perceived deficiencies in the marketplace of ideas is a cure that is worse than the disease. ”

So what is the baseline for Cole’s conception of free speech?  “The best argument for protecting speech,” he stresses, “is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives. . . . [W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak.”

SPLC: Google, Hate Crimes, and Algorithms

In case you missed it, the Southern Poverty Law Center recently issued a story titled  Google and the Miseducation of Dylann RoofRecall, Roof was the man who murdered nine African Americans during a Bible study. How did Roof go from being someone who was not raised in a racist home to someone so steeped in white supremacist propaganda the man responsible for the massacre at the historic Emanuel A.M.E. Church in Charleston? Here is how the SPLC story answered that question:

“The answer lies, at least in part, in the way that fragile minds can be shaped by the algorithm that powers Google Search.

It lies in the way Google’s algorithm can promote false propaganda written by extremists at the expense of accurate information from reputable sources.

See SPLC video here

Roof’s radicalization began, as he later wrote in an online manifesto, when he typed the words “black on White crime” into Google and found what he described as “pages upon pages of these brutal black on White murders.”

SPLC President Richard Cohen

The first web pages he found were produced by the Council of Conservative Citizens, a crudely racist group that once called black people a “retrograde species of humanity.” Roof wrote that he has “never been the same since that day.” As he delved deeper, because of the way Google’s search algorithm worked, he was immersed in hate materials.

Google says its algorithm takes into account how trustworthy, reputable or authoritative a source is.

In Roof’s case, it clearly did not.”

Speaking this past Monday evening the George Washington University’s Lisner Auditorium, SPLC President Richard Cohen said that at first Google was reluctant to tweet its algorithms but apparently did so afterwards. Mr. Cohen said that a meeting has been set up between Google and representatives from the SPLC.

Story: “Amazon releases Echo data in murder case, dropping First Amendment argument” Read More

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An Optimist in Pessimistic Times: Chief Judge Katzmann on Civic Education

Chief Judge Katzmann (Charlie Rose program)

One of the keys to the survival of free institutions is . . .  the way citizens do, or do not, participate in the public sphere. — Robert N. Bellah

*  * * 

Civic education is a force than can provide the ties that bind.”

Those are the words of Second Circuit Chief Judge Robert Katzmann, spoken recently on the Charlie Rose program. At a time when partisan politics and ignorance of our constitutional system of government have nearly become our collective default position, Judge Katzmann is busy rallying the cause of the civic-minded citizen. To that end, two years ago he launched “Justice for All: Courts and the Community.” Its Mission:

The federal judiciary is one of the three branches of the national government. It seeks to provide the fair and effective administration of justice for all persons and interests, regardless of race, color, creed, gender, or status. Federal courts and their state court counterparts provide a means for settling disputes peacefully, and help to foster democratic governance, consistent with the Constitution’s goals of “justice” and “domestic tranquility.” Those who founded our government recognized the critical importance of an independent national judiciary with a limited but essential role.

With the active participation of members of the Bar and community organizations working through several committees, its activities include:

  • hosting field trips to the courthouse for schools and community organizations to observe court proceedings and to meet with judges and court staff;
  • holding moot courts and mock trials for students;
  • developing educational resources for teachers about the law and justice system; developing learning centers;
  • creating library labs for students;
  • coordinating Constitution Day/Citizenship Day programs;
  • supporting essay contests;
  • sponsoring adult education programs in such areas as financial literacy;
  • fostering jury service; and
  • developing a speakers bureau whereby judges and members of the Bar visit the schools and community organizations to discuss the work of the courts.

Following in the footsteps of his mentors Senator Daniel P. Moynihan and Judge Frank M. Coffin, Katzmann is doing what he has long espoused: urging moderation counseled by knowledge coupled with a genuine commitment to improving our democracy. Can he succeed? That is the question.

With steadfast energy, the Chief Judge ventures to schools and elsewhere preaching the the Jeffersonian and Madisonian and Hamiltonian gospels of civic engagement . . . and those of Harriet Tubman and Rosa Parks, too.

Duly sensitive to our “red state/ blue state” differences, Judge Katzmann believes in his mission enough to broker this renewed experiment in democracy. Of course, like any experiment, it may fail. But he moves ahead nonetheless; color him an optimist. Again, his words: “Civic education is a force than can provide the ties that bind.”

For more information, go here.

* * See also * * 

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Stone’s “Sex and the Constitution” — a monumental work

Professor Geoffrey Stone

If you thought Geoffrey Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) was an incredible book, hold on: the University of Chicago law professor has outdone himself with his latest book — Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, March 21, 2017).

I know of what I speak: I’ve read both books (the latest in advance galleys). With a discerning sense of the currents of history combined with a masterful grasp of the undercurrents of law, Stone provides his readers with a wide-lens view of how sex and the law have interacted in the span of time dating back to ancient Athens. At once fascinating and disturbing, this book reveals how law works — both as a suppressor and liberator. Witness, for example, the nightmarish world of Anthony Comstock (1844-1915) in which countless lives were sacrificed on the altar of Victorian values. Contrast that with the emergence of a new day brought about by Lawrence v. Texas (2003), which thanks to the lawyer Paul M. Smith and the jurist Anthony M. Kennedy helped to free us from the shackles of sexual bigotry. It’s all there, and more, is this superbly crafted book.

That “more” includes everything from the rigid righteousness of St. Augustine (who was a lustful sinner before he became a revered saint), to those ever-so-pious Puritans who loved to lash the impure, to the Temperance Movement crowd and their campaign to ferret out lust in books (and in loins, too, by way of “anti-masterbation devices”), to those entrusted with enforcing Comstock morality and who felt it their God-given duty to persecute the likes of Margaret Sanger (the birth-control activist) and Ira Craddock (author of Right Marital Living), to Attorney General Alberto Gonzales who with zealous conviction launched the Obscenity Prosecution Task Force, to the Moral Majority’s Grand Poobah, Jerry Falwell, and his insistence that the government not spend any money to combat AIDS because this “plague” was the “judgment of God,” to all those who so vigorously opposed gay marriage because it threatened the continued viability of traditional marriages. Oh, the price we have paid for those virtues bequeathed to us by St. Augustine!

As one turns the pages of this book, something of the marvelous freedom-affirming spirit of When we Rise leaps from the pages of Sex and the Constitution. Still, this is not a work that takes liberties with facts; rather, it is a needs-to-be told story presented with legal acumen and a sophisticated sense of history. The scholar in Stone presents his case with nuanced precision, while the humanitarian in him presents his narrative with a gripping sensitivity to those subjected to the whip of sexual morality.

Have I overstated the importance of Sex and the Constitution? Have I exaggerated its worth? No, not at all; truth is my defense. If you doubt that, read the book. If you accept that, buy the book. If you disagree with that, challenge the book. But of this there can be no doubt: Sex and the Constitution is destined to be the defining work of its genre for a long, long time to come.

The epigraph quote for the prologue  to Sex and the Constitution is the same one used as the quote for epilogue.  And it is a fine line, one from Justice William Brennan’s opinion in Roth v. United States (1957):

Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages.

And it is also a fitting tribute to the memory of the Justice for whom Geoffrey Stone once clerked.

__________What Others Are Saying ___________

“No one should miss out on Stone’s spectacular tour through more than 2,000 years of sex, religion, culture, and law. A treasure-house of philosophical brilliance and legal and historical insight—not to mention erotic delights!—this masterpiece is the rarest of combinations: a page-turner that is also a magisterial font of erudite wisdom.”

Laurence H. Tribe, Carl M. Loeb University Professor, Harvard University

“A vivid, sweeping, and compellingly readable account of the history of sex, religion, and the law by one of our most prominent legal scholars.  This monumental study illuminates the origins and stakes of some of the most heated contemporary debates in constitutional law.”
George Chauncey, Samuel Knight Professor of History, Yale University

“Few, if any, legal scholars possess the capacious intellect and encyclopedic command of constitutional law and American history to make us see in an entirely new light what is perhaps society’s most commonly discussed subject.  In devoting his unique talents to Sex and the Constitution, Geoffrey Stone has created a volume of lasting significance that quickly will become essential reading for all who want to better understand sweeping cultural transformations that continue to roil society.”
Lee C. Bollinger, President, Columbia University

Sex, which has simultaneously inspired and eluded regulation through the ages, has been the focus of many of our greatest constitutional controversies.  No one is better suited than the always erudite and lucid Geoffrey Stone to provide the panoramic treatment that the subject deserves.  Unless you are the rare person who has no interest in either the Constitution or sex, you will want to read this book.”
David Cole, LegalDirector, American Civil Liberties Union

“This fascinating account of how sexual mores, religion, and law have intersected or—more often—collided throughout American history is really about even more than that. It’s about the role of law in maintaining a civil society in a diverse 21st century America, and a call to the Supreme Court to step up to the challenge.”
Linda Greenhouse, Pulitzer Prize winner & Knight Distinguished Journalist in Residence, Yale Law School

“Magnificent and monumental—a stunning blend of dispassionate analysis and deep moral conviction. Think that the United States was born as a Christian nation? Think again.”
Cass R. Sunstein, Robert Walmsley University Professor, Harvard     University

“A superb examination of the history of how the law has regulated sexual behavior and sexual expression from the ancient world to today. This is a brilliant book that offers a balanced and nuanced treatment of controversial topics such as obscenity, abortion, and same sex marriage.”
Erwin Chemerinsky, Dean and Raymond Pryke Professor, University of California, Irvine School of Law

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FAN 144 (First Amendment News) Cert Petition: Nursing student challenges expulsion for Facebook comments

Craig Keefe (Credit: Brainerd Dispatch)

Seattle. The case is Keefe v. Adams. It involves Craig Keefe. According to a story by David Hanners in the Twin Cities Pioneer Press, Mr. Keefe was a “semester away from finishing his studies to be a registered nurse. Like a lot of college students — like a lot of Americans — he was on the social networking site Facebook. But in December, officials at Brainerd’s Central Lakes College took exception to some of Keefe’s posts on his private Facebook page and kicked him out of school.Keefe says he wasn’t told what the problems were with his posts, nor was he told why or how anything he did violated school policy. Angered, he has taken his complaint to court.”

See District Court opinion here and Eight Circuit opinion denying First Amendment & Due Process claims.

In a cert. petition recently filed with the Supreme Court, the issues raised were:

  1. May a public community college use professional conduct codes to expel a nursing student from a professional degree program, without regard to First Amendment limits, for comments unrelated to the school’s curriculum posted to the student’s personal Facebook page?
  2. May a public community college expel a student for disciplinary infractions using less rigorous due process procedures applicable to decisions involving curricular speech?

The brief, filed by Robert-Corn-Revere (with Ronald London & Lisa Zycherman), begins: “This case raises the question of whether the First Amendment permits a public college to expel a student from a professional degree program under nebulous standards, such as ‘maintaining professional boundaries,’ for posting non-curricular com- ments on his Facebook page. A divided panel of the Eighth Circuit said that it could, even though the student’s speech was not part of any coursework or clinical requirement.In reaching this conclusion, the panel expanded the limits of the ‘professional speech doctrine,’ which permits regulation only where the speech is directly related to specific professional duties.”

“It also exacerbated existing circuit splits that seek to define when off-campus speech may be subject to regulation, when speech may be considered to be ‘school-sponsored,’ and when adult college students may be subjected to the lesser First Amendment protections often provided elementary and secondary school children”

“In the process, the panel approved more lax due process procedures under the guise of a curricular expulsion, when the college instead was imposing a disciplinary sanction. The decision ignored this Court’s precedents, which require more formal due process procedures in the case of disciplinary sanctions, and created further disarray among the circuits on this issue. Review by this Court is necessary to clarify the First Amendment and due process principles involved.”

The Petitioner urges the Court to review the case for the following reasons:

I.      This Court’s Review is Essential to Clarify First Amendment Limits of Applying Professional Standards to Restrict Non-Curricular Speech by Public College Students

A. The First Amendment Protects College Students and Others Subject to Professional Codes of Conduct

B. The Eighth Circuit Blurred the Line Between Curricular and Non-Curricular Speech,Widening a Rift Among the Circuits

C. Review by This Court is Imperative

II.     This Court’s Review is Essential to Clarify Due Process for Disciplinary Sanctions on Non-Curricular Speech ata Public College.

SCOTUSblog: Justices skeptical about social media restrictions for sex offenders

David T. Goldberg (Counsel for Petitioner)

This from Amy Howe over at SCOTUSblog: “At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were ‘incredibly important parts’ of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even ‘structure their civil community life’ around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from ‘a very large part of the marketplace in ideas.’ Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.”

“. . . . And perhaps most critically for the state, Justice Anthony Kennedy was unconvinced by the state’s efforts to rely on a 1992 case in which the justices upheld a Tennessee law that imposed a ban on soliciting votes or distributing campaign materials within 100 feet of a polling place. The court in that case ruled that the ban served the state’s interest in protecting its citizens’ right to vote freely, but Kennedy today dismissed the Tennessee ban as “not analogous” to North Carolina’s. If that is the best you have, he seemed to be saying to Montgomery, ‘I think you lose.’ If Kennedy is indeed on board, then Packingham seems to have five votes in favor of striking down the North Carolina law.”

Transcript of oral arguments here.

See also, Ruthann Robson, Court Hears Oral Argument on Sex Offenders’ First Amendment Right to Access Social Media, Constitutional Law Prof Blog, Feb. 27, 2017

9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others

This from Just Security: Recently, “the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism—including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country.” Here is the lineup (go to link for comments):

  1. Robert Corn-Revere (Davis Wright Tremaine)
  2. Lucy Dalglish (U. MD. Journalism Dept.)
  3. Arthur Eisenberg (NYCLU)
  4. Jameel Jaffer (Knight First Amendment Institute, Columbia)
  5. Dawn Johnsen (Indiana U. Law School)
  6. Lee Levine (Levine Sullivan Koch & Schulz)
  7. Burt Neuborne (NYU Law School)
  8. David Schulz (Media Freedom & Information Access Clinic, Yale Law School)
  9. Laurence H. Tribe (Harvard Law School)

See video clip: Sean Spicer on Politico’s Playbook, Dec. 2016

NYU Center for the Humanities hosts event on Trump & First Amendment

February 22, 2017: The panelists discussed the history of freedom of speech and what the new administration means for First Amendment rights.

“The election of Donald Trump has come with a broad attack on the press and on the freedom of political expression. What are likely to be the challenges to the First Amendment going forward, and how does America’s history of robust dissent support the protection of speech and press today?”

The panelists were:

  • Floyd Abrams, Renowned First Amendment Attorney, Cahill Gordon & Reindel LLP; Author, The Soul of the First Amendment (forthcoming in April)
  • Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; President of the American Civil Liberties Union, 1991-2008;  Author, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights
  • Stephen Solomon, Associate Professor of Journalism, Arthur L. Carter Journalism Institute, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech
  • Thomas Healy, Professor of Law, Seton Hall Law School; Author, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

More on Trump & the First Amendment 

You know, they always bring up the First Amendment. I love the First Amendment; nobody loves the First Amendment better than me. Donald Trump

  1. Noah Feldman, Trump’s Love-Hate Relationship With the First Amendment, Bloomberg View, Feb. 27, 2017
  2. Debra Cassens Weiss, Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filed, ABAJ, Feb. 27, 2017
  3. Jonathan Kraut, Trump violates First Amendment, The Signal, Feb. 27, 2017
  4. Sue Lempert, Fake news and the First Amendment, The Daily Journal, Feb. 27, 2017
  5. Nate Madden, Trump’s Fighting the Media, not the First Amendment, Conservative Review, Feb. 27, 2017
  6. Trump Thinks First Amendment is a Joke, The Young Turks, Feb. 24, 2017 (YouTube)

Reporters Committee files brief opposing journalist’s subpoena in Malheur stand-off prosecution

Ariel B. Glickman | Reporter’s Privilege | News |  February 23, 2017

The Reporters Committee for Freedom of the Press filed an amicus brief opposing compelled testimony of John Sepulvado, a former reporter with Oregon Public Broadcasting (OPB), which was authorized by Attorney General Jeff Sessions in his first week in office. Sepulvado had interviewed Ryan Bundy, one of the Malheur Natural Wildlife Refuge occupants, about the purpose of the occupation in January 2016.

Though there had been earlier contacts from prosecutors, a subpoena was finally served on Sepulvado last week. The subpoena does not limit the scope of the requested testimony. The government seeks to have Sepulvado authenticate his interview of Bundy, which would also open Sepulvado up to vigorous cross-examination by the defendants, all of whom oppose the subpoena.

Sepulvado’s attorney filed a motion to quash the subpoena this week. In its brief in support of that effort, the Reporters Committee noted the jurisdiction’s long history of maintaining the confidentiality of journalists’ work product and the importance of an independent press to an informed public. The brief highlights the chilling effect that compelled testimony of confidential newsgathering information would have on future sources, and how that would affect deeply-researched stories.

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FAN 143 (First Amendment News) The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch  

A 1990 Harvard yearbook shows Neil Gorsuch, second row from the top on the left.

Vancouver, Canada. Neil Gorsuch clerked for Justice Anthony Kennedy (earlier for Justice Byron White) during the 1993-1994 Court Term.

In that Term the Court decided Turner Broadcasting System, Inc. v. FCC (June 27, 1994). Justice Kennedy wrote the majority opinion in Turner. The issue in Turner was whether the Cable Television Consumer Protection and Competition Act’s “must carry” rules violated the First Amendment. On that score, Justice Kennedy’s opinion stressed, among other things, that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Thus, “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”

Of course, we do not know what, if any, involvement young Gorsuch might have had in the case as one of Justice Kennedy’s law clerks.  What we do know, however, is that dating back to his college days at Columbia, Neil Gorsuch had an abiding interest in the First Amendment. (Professor Eugene Volokh clerked at the Court that same Term; he worked for Justice Sandra Day O’Connor.)

Commentaries 

  • In a 1994 law review article, Professors Monroe Price and Donald Hawthorne wrote: “Driven by its fixation on content-neutrality, the Turner Broadcasting Court, far from recognizing the importance of the distinction between commercial and non-commercial broadcasters, deemed it immaterial and practically non-existent. . . . We suggest that Justice Kennedy’s rigid doctrinal approach can potentially endanger all substantive government regulation of the electrnic media, especially measures designed to aid non-commercial programmers.”
  • “The Court in Turner,” wrote Henry Geller,  “determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems . . . come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O’Brien standard when the regulation is content-neutral.”
  • Robert Corn-Revere, who wrote on the case in 1994, noted that the “debate in Turner Broadcasting regarding the applicable First Amendment standard for cable television brought to a head an ongoing dispute of the past two decades.” Analyzing the opinion, he added that Turner “did not end the debate, [but] may mark a judicial shift toward a more traditionalist approach to electronic means of communication.” That shift came a few years later in United States v. Playboy Entertainment Group, Inc., which Corn-Revere argued. The Turner case formed a key part of Playboy’s opposition to the government’s claim that broadcast indecency standards should be applied to cable.  The Court agreed with Playboy’s position and struck down the law (Section 505 of the Telecommunications Act of 1996), focusing on the technological difference “between cable television and the broadcasting media, which is the point on which this case turns.” 

* ** * * 

 See also: FAN, #141: Judge Neil Gorsuch — the Scholarly First Amendment Jurist

→ Alex J. Harris, who clerked for Judge Gorsuch on the 10th Circuit, is now clerking for Justice Kemmedy.

Senate Judiciary Committee Members 

The Senate Judiciary Committee’s hearings on Judge Gorsuch are set for Monday, March 20th. Senator Chuck Grassley (R-Iowa) chairs the Committee. Those on the committee are:

Republicans (11): Orrin G. Hatch, Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Feff Flake, Mike Crapo, Tom Tills, & John Kennedy.

Democrats (9): Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher A. Coons, Richard Blumenthal  & Mazie Hirono

Tomorrow in LA: First Amendment Salon on Judge Gorsuch & the First Amendment

Jim Newton of the LA Times

It will the twelfth First Amendment Salon and the first one of 2017; it will address the topic of Judge Neil Gorsuch and freedom of expression.  The salon dialoge will feature Jim Newton (acclaimed author & editor, editorial page, L.A. Times) interviewing Eugene Volokh (noted First Amendment scholar and Gary T. Schwartz Distinguished Professor of Law, UCLA). Kelli Sager (First Amendment specialist & partner, Davis Wright Tremaine) will introduce the discussants.

Tomorrow’s salon will take place at the Los Angeles offices of Davis Wright Tremaine. As always, the salon is co-hosted by Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Live webcasts will be to the D.C. and New York offices of Davis Wright Tremaine with the video of the event to be posted soon on FIRE’s online First Amendment Library (see additional links to the salons below)

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Former Gorsuch clerks who went on to work for Supreme Court Justices — two of them serving this Term

If Judge Neil Gorsuch is confirmed, he will soon be working with some familiar faces — two of his former law clerks are currently clerking on the Court (for Justices Anthony Kennedy and Elena Kagan).

All in all, five sitting Justices have hired Gorsuch Clerks.

Justice Antonin Scalia hired more Gorsuch clerks (4) than any of his colleagues.

Here is the lineup of the 13 Gorsuch clerks who went on to clerk on the Supreme Court:

  • Antonin Scalia [4]  — Michael E. Kenneally (2016- then to Samuel Alito), Michael Kenneally (2015-16 Term), Eric C. Tung (2012-13 Term), Matthew S. Owen (2010-11 Term)
  • Samuel Alito [3] — Michael E. Kenneally (1st with Scalia), Lucas Walker (2015-16 Term), Michael H. McGinley (2014-15 Term)
  • Elena Kagan [2] — Gerard J. Cedrone (2016-17 Term), Jason C. Murray (2013-14 Term),
  • Clarence Thomas [2] — Katherine C. Yarger  (2013-14 Term), Allison B. Jones (2010-11 Term)
  • Sonia Sotomayor [1] — Jane E. Kucera (2011-12)
  • Anthony Kennedy [1] —  Alex J. Harris (2016-17 Term)
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FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule

 

Paul Gerlich & Erin Furleigh (credit: FIRE)

Seattle. “Then-students Paul Gerlich and Erin Furleigh were officers with Iowa State University’s chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) when they filed their lawsuit in July 2014, through the Foundation for Individual Rights in Education’s (FIRE’sStand Up For Speech Litigation Project. The group had multiple T-shirt designs rejected by the university and was subject to unusually heavy, politically motivated scrutiny when applying to use ISU logos under the school’s trademark policy.”

Yesterday, “the Eighth Circuit held that ISU administrators had engaged in unconstitutional viewpoint discrimination, violating Furleigh and Gerlich’s First Amendment rights.” (FIRE press release)

The case is Gerlich v. Leath, which was handed down by a three-judge panel of Eight Circuit. The opinion for the court was written by Judge Diana E. Murphy. Here is how it opens:

Judge Diana Murphy

“Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws had several of its trademark licensing requests denied because its designs included a cannabis leaf. Two members of the student group subsequently filed this 42 U.S.C. § 1983 action, alleging various violations of their First and Fourteenth Amendment rights. The district court granted plaintiffs’ summary judgment motion in part and entered a permanent injunction against defendants. Defendants appeal, and we affirm.”

In deciding the case, the court ruled that the ISU NORML chapter had Article III standing to sue under both Rosenberger v. Rector & Visitors of Univ. of Va. (1995) and Widmar v. Vincent (1981).

The court held that the government cannot grant or withhold government benefits based on officials’ political preferences — including use of trademarks. It drew a clear line against expansion of the “government speech” doctrine to matters involving student speech on university campuses. — Robert Corn-Revere (lead counsel for Plaintiffs)

Limited Public Forum Issue: The court then sustained the Plaintiffs’ motion for summary judgment on their as applied First Amendment challenge. In that regard, Judge Murphy noted: ‘If a state university creates a limited public forum for speech, it may not “discriminate against speech on the basis of its viewpoint.’ Rosenberger. A university ‘establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez (2010). A university’s student activity fund is an example of a limited public forum. See Rosenberger. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.”

Lisa Zycherman (one of Plaintiffs’ lawyers)

Viewpoint Discrimination: “The defendants’ rejection of NORML ISU’s designs,” she added, “discriminated against that group on the basis of the group’s viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is ‘the specific motivating ideology or the opinion or perspective of the speaker.’ Rosenberger.”

“. . . . The instant facts are somewhat similar to those in Gay & Lesbian Students Ass’n v. Gohn (8th Cir. 1988). In that case, the University of Arkansas made funding available to student groups but denied funding one advocating for gay and lesbian rights. We concluded that the university had engaged in viewpoint discrimination.  In reaching this conclusion our court relied on the fact that the university followed an unusual funding procedure that was specific to the gay and lesbian group, some of the decision makers ‘freely admitted that they voted against the group because of its views,” and ‘[u]iversity officials were feeling pressure from state legislators not to fund’ the group. Id.

The court rejected ISU’s denials that its actions were politically motivated. The court pointed to e-mail communications among school officials that showed they reacted within hours of receiving inquiries from legislative staff and political appointees. ISU’s President, Steven Leath, testified at his deposition that he was concerned about “political public relations implications” of the NORML ISU t-shirt designs, and “my experience would say in a state as conservative as Iowa on many issues, that [it] was going to be a problem.”  Leath also testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.”

Ronald London (one of Plaintiffs’ lawyers)

Government Speech Claim: Finally, the Court rejected ISU’s claims that the administration of the trademark licensing regime should be considered government speech. The government speech doctrine does not apply if a government entity has created a limited public forum for speech, wrote Judge Murphy relying on Pleasant Grove City. As noted above, she added, “ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.”

“Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. . . . [Even when analyzed under the three-factors announced in Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015), those] factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.”

Lawyers for the Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman.  Local counsel was Mike Giudicessi.

Three of Professor Eugene Volokh’s students — Ian Daily, Eric Sefton and Sydney Sherman — and Volokh filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

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