Author: Ronald K.L. Collins

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FAN 194.2 (First Amendment News) First Amendment Watch & FAN co-host online roundtable on Seidman essay — “Can Free Speech Be Progressive?”

Free speech cannot be progressive. At least it can’t be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. — Louis Michael Seidman

Professor Louis Michael Seidman

Over at First Amendment Watch (FAW) Professor Stephen Solomon has posted the introduction to an online roundtable discussion of Professor Louis Michael Seidman’s essay “Can Free Speech Be Progressive?,” which will be published in a forthcoming issue of Columbia Law Review.  

FAW is partnering with First Amendment News to host and publicize the online rountable.  Professor Solomon has written an introduction to the discussion along with a summary of the Seidman essay (there is also a link to the full essay). Future online exchanges are being considered —  suggested topics are invited (send to: rklc@uw.edu).

Below is a list of the commentators whose replies will appear on the FAW website starting tomorrow:

Thursday, June 21:                   Floyd Abrams
Friday, June 22:                         John Schnapper-Casteras
Monday, June 25:                      Jane Bambauer
Tuesday, June 26:                     Ronald R.K. Collins
Wednesday, June 27:               Richard Delgado
Thursday, June 28:                   Mike Seidman:  Rejoinder
Friday, June 29 onward:        Reader responses

 

Note — reader responses are invited and will be considered for posting. E-mail submissions to fawroundtable@gmail.com. The comments selected will be posted on Friday, June 29 and thereafter.

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FAN 194.1 (First Amendment News) Today — Washington Post Live hosts “Free to State: The Future of the First Amendment.

The Washington Post brings together journalists, scholars, business leaders and advocates to explore how the interpretation of our First Amendment rights have evolved in principle and practice, and what it means for a modern democracy.

Event Details

  • Tuesday, June 19, 2018
  • 3:00 PM – 5:00 PM (Doors open at 2:30)
  • The Washington Post Live Center, 1301 K Street NW, Washington, DC 20071

AGENDA

3:00 p.m.        Opening Remarks

  • Martin Baron, Executive Editor, The Washington Post @PostBaron

3:05 p.m.        The First Amendment and the Law

From courts to football fields to college campuses, a look at how key players in the free speech debate are shaping First Amendment law across the country.

  • Susan N. Herman, President, American Civil Liberties Union @SusanHermanACLU
  • Suzanne Nossel, Chief Executive Officer, PEN America @SuzanneNossel
  • Jesse Panuccio, Acting Associate Attorney General, U.S. Department of Justice @JessePanuccioFL

Moderated by Ruth Marcus, Deputy Editorial Page Editor, The Washington Post @RuthMarcus

3:35 p.m.        One-on-One with the Cambridge Analytica Whistleblower

Chris Wylie, the former Cambridge Analytica research director turned whistleblower, discusses the potential uses of big data to influence behavior and assesses how online communities are facilitating free expression and thought in the digital age.

  • Chris Wylie, Whistleblower; Former Director of Research, Cambridge Analytica @

Interviewed by Craig Timberg, National Technology Reporter, The Washington Post @craigtimberg

3:55 p.m.        Let’s Talk About ‘Political Correctness’

Promoting equality and inclusion is often at loggerheads with free speech. Speakers will discuss evolving norms of expression and representation in the areas of advocacy, popular culture and digital media.

  • Patrisse Khan-Cullors, Co-Founder, Black Lives Matter @OsopePatrisse
  • Hari Kondabolu, Comedian and Documentarian, “The Problem with Apu” @harikondabolu
  • Dylan Marron, Host, “Conversations With People Who Hate Me” @dylanmarron

Moderated by Sarah Ellison, Media Reporter, The Washington Post @Sarahlellison

4:25 p.m.        What The End of Net Neutrality Means for Online Speech

Experts debate what effect the repeal of net neutrality rules will have on access to and freedom of expression on the Internet.

  • Robert Atkinson, President, Information Technology and Innovation Foundation @RobAtkinsonITIF
  • Sen. Edward J. Markey (D-Mass.), Member, U.S. Senate Committee on Commerce, Science and Transportation @SenMarkey
  • Michael O’Rielly, Commissioner, Federal Communications Commission @mikeofcc
  • Jonathan Spalter, President and CEO, USTelecom @Jspalter

Moderated by Brian Fung, Telecommunications and Media Reporter, The Washington Post @b_fung ‏

4:55 p.m.       It’s No Joke: Comedy and Free Speech

Comedy can be used to explore uncomfortable subjects, provoke outrage, reveal truths and hold leaders accountable. Emmy and Grammy Award-winning comedian Patton Oswalt discusses the evolution of comedy as a form of free speech.

  • Patton Oswalt, Comedian and Actor @pattonoswalt

Moderated by Elahe Izadi, Pop Culture Writer, The Washington Post @ElaheIzadi

This is the second annual “Free to State” program, part of a series of events The Post is producing in partnership with the John S. and James L. Knight Foundation with support from The Freedom Forum Institute and The University of Virginia.

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Tribute: “Reinhardt and I” by Alex Kozinski

He left a hole in my life, and that of many others, and he left a large hole in our legal system which, with his passing, has become colder, less caring, less passionate, less human. — Alex Kozinski 

Below is a tribute to the memory of Judge Stephen Reinhardt who died on March 29th.  The tribute, “Reinhardt and I,” is by Alex Kozinski, who was Reinhardt’s colleague and longtime friend. Several links have been added (some by me, others by A.K.) along with subheadings. Photos were provided by Alex Kozinski. — RKLC

* * * * 

He stood behind his desk and looked at me the way a bird might eye a worm it’s about to gobble up.  “Nice to meet you,” he said, stretching out a hand for a reticent hand-shake.  But his manner completed the thought:  “And I hope never to see you again.”

An inauspicious beginning 

In September 1985, when I was Chief Judge of the Court of Federal Claims, I came to Los Angeles from Washington, D.C. to preside over a trial.

The previous month I was nominated to the Ninth Circuit. Even before I was confirmed, Bill Norris, who just a few years earlier recruited me to join his law firm as an associate and was now a Ninth Circuit judge, offered to introduce me to my future colleagues.

Arthur Alarcon welcomed me with open arms. Dorothy Nelson was her bubbly self. Harry Pregerson asked:  “Whom do you favor in immigration cases?” Somewhat puzzled, I said “Depends on the case–I’d have to read the briefs.” “Nah,” Pregerson said. “I always rule for the immigrant if I can get someone to go along with me.”  Betty Fletcher, who was in town for a sitting, was cordial but muted.

Reinhardt alone was overtly grumpy. We swapped glares for a few minutes while Norris waxed eloquent about what excellent colleagues we’d be.  As I turned to leave, Reinhardt muttered “good luck” and managed to make it sound like it was something I’d need very badly if he had anything to say about it.  I suspect that as soon as we left he picked up the phone and tried to gin up opposition to my confirmation. He almost succeeded.

Stephen Reinhardt & Alex Kozinski (circa 2003)

From that inauspicious beginning grew a friendship that lasted and intensified over the course of three decades to the point where we became as close as any two judges in the history of the federal judiciary.  How this came about is a tale worth telling.

The odd couple 

We managed to ignore each other for the first few months after I was confirmed, but relations started to thaw in response to a First Amendment case, International Olympic Committee v. San Francisco Arts and Athletics, more commonly known as the Gay Olympics case.  A panel of our court held that Congress had given the word “Olympic” to the United States Olympic Committee, which was entitled to enjoin its use without showing likelihood of confusion or overcoming any trademark defenses.  The defendant organization wanted to run a competition for gay athletes to promote the notion that being gay is consistent with the wholesome values associated with the Olympics.  The district court had enjoined use of the word “Olympic” and a panel of our court affirmed.  This struck me as inconsistent with the Supreme Court’s ruling in Cohen v. California that “words are often chosen as much for their emotive as their cognitive force” and one cannot, therefore, “forbid particular words without also running a substantial risk of suppressing ideas in the process.”

So I called the case en banc — the first of dozens of such calls I would make over the succeeding three decades.  The call eventually failed and I wrote a dissent from the denial of rehearing en banc — or “dissental” (a term I coined that Reinhardt loathed with a passion, but then again, he did everything with passion).  The Supreme Court took the case and affirmed. Justice Brennan dissented, quoting my dissental.  Eventually, there was a film about the case, in which I made a brief appearance.  Justice Scalia later told me with some glee that there really wasn’t much to the case and they had only granted cert because of my dissental. Far from discouraging me, Scalia’s comment confirmed that dissentals could be powerful tools — a lesson Reinhardt and I, as well as other Ninth Circuit colleagues, put to good use over the years.

Stephen Reinhardt & Alex Kozinski (circa 2003)

But the real significance of the Gay Olympics case was the thawing of relations with Reinhardt. He was recused in the case because he had been Secretary of the 1984 Los Angeles Olympic Organizing Committee, so he expressed no view and cast no vote while the case was pending before us. Soon after the case left our court, however, he told me in that he had found my call memos thought-provoking (or some such neutral phrase). But I could tell he was impressed, maybe not so much with the cogency of the arguments as with the fact that a guy appointed by Ronald Reagan would stick up publicly for the right of gays to express pride in their sexuality — a notion still outré at the time.

For a long time, he thought I was gay, to which he would allude on occasion. I demurred, but not too vigorously. If believing I’m gay gained his trust, that was fine with me. Eventually, he figured out I’m a libertarian — a liberal at home and a conservative at work, as the saying goes — and this led us to become bitter opponents in some cases and close allies and co-conspirators in others.

No punches pulled

When it came to questions of privacy and constitutional protections for criminal defendants, we were almost always on the same side, and we were usually on the same side when it came to the First Amendment.

But not always.  One case as to which we disagreed was Harper v. Poway Unified School District, which challenged the validity of a High School hate speech code under Tinker v. Des Moines School District, where public school students wore black arm bands to protest the Vietnam War.  Harper wore a T-shirt with messages (front and back) disparaging homosexuality, which school authorities ordered him to cover up and not wear to school again.  The school justified its action under its hate speech policy, which prohibited acts “motivated all or in part by hostility to the victim’s real or perceived gender, race, ethnicity, religion, sexual orientation, or mental or physical challenges.”

Harper challenged the policy relying on Tinker, and the dispute turned on whether application of the hate speech policy to ban Harper’s shirt was justified under Tinker‘s exception for speech that “involves substantial disorder or invasion of the rights of others.” There was no evidence that the T-shirt had caused disruption, but Reinhardt, writing the majority, held that the school could ban it because it “was injurious to gay and lesbian students and interfered with their right to learn.”

In dissent, I questioned whether this rationale was encompassed by Tinker‘s limited exception for speech that violates the rights of others.  After all, the black arm-bands in Tinker could easily have angered and distressed students whose friends or relatives had been killed or wounded in Nam.  And bringing the protest into the school did distract from classroom activities, as Justice Black pointed out in dissent.

We’ll never know who was right in Harper because the Supreme Court vacated our opinion as moot when Harper graduated. The question continues to be an open one and will have to be resolved by the Ninth Circuit and, eventually, the Supreme Court.  See, e.g.  G.M.  v. Washoe County School District.  (I am concerned about the long-term viability of Tinker and other strong First Amendment cases, given the precipitous erosion of respect for freedom of speech in our time.)

Another free speech case where Reinhardt and I disagreed sharply involved an English-only amendment to the Arizona constitution. Yniguz v.  Arizonans for Official English.  The law provided that all state and local government business must be conducted in English and, to that end, state and local employees could speak only English when dealing with the public.  Maria-Kelley Yniguez, who dealt with the public on behalf of the state, claimed a First Amendment right to do so in Spanish.

Stephen Reinhardt & Alex Kozinski (circa 2003)

The case found its way to an 11-judge en banc court, where Yniguez prevailed in an opinion written by Reinhardt. The opinion relies in part on the speech rights of government employees in such cases as Rankin v. McPherson and Pickering v. Board of Education, and in part on the right of the public to receive information as announced in Virginia State Bd.  of Pharmacy v. Virginia Citizens Consumer Council.  According to Reinhardt, the Arizona law restricted both the employees’ right to speak and the right of members of the public not proficient in English to receive information.

In dissent I noted that the cases cited by the majority were beside the point because they dealt with private speech whereas this case involved communications between the state and its citizens.  Even if using English was less efficient, the state had a legitimate interest in forestalling the social Balkanization that comes from having different segments of the population using different languages.

Reinhardt was so outraged by my dissent that he wrote a concurrence to his own opinion for the sole purpose of putting me in my place.  According to Reinhardt, I was espousing “an Orwellian world in which Big Brother could compel its minions to say War is Peace and Peace is War, and public employees would be helpless to object.  It would not matter whether government had a legitimate purpose or even whether it had a purpose at all.”  I didn’t think I was saying that, but there was no arguing with Reinhardt when he got his dander up –which happened fairly often.

The fact is, neither Reinhardt nor I pulled punches. He always disdained judges who sugar-coated their opinions in order to spare the feelings of other judges. Whether another judge might be disconcerted by an opinion, he thought, was irrelevant.  What mattered was getting the right result and, where appropriate, using the opinion to teach about justice. On that point we agreed, though we sometimes disagreed as to what that lesson should be.

As in Harper, we never did find out who was right in Yniguez. Maria-Kelley had resigned from her government post, so (you guessed it) the Supreme Court vacated our opinion as moot. If the issue comes before the Supreme Court again, I’m reasonably confident the Court will side with me rather than Reinhardt, but who knows? The important thing is that we gave the question serious, vigorous, passionate consideration — pulling no punches, sparing no feelings — and then went to the theater and dinner together.

Passion for the unfortunate 

Why our relationship thrived, despite frequent and vigorous disagreements, is hard to pin down. In part it was that we also often agreed, and when we did we encouraged and supported each other.  What Reinhardt brought to the table was a passion for the law and, more particularly, for those unfortunates whom the law treated badly.  He would use his considerable talents to find a principled way around adverse precedents and pull out a victory.  And when the law was insufficient, Reinhardt would try to find lawful extra-judicial means of achieving a just result.

He did this, for example, in the case of Shirley Ree Smith, the grandmother unjustly convicted of killing her grandchild by “shaken baby” syndrome, despite compelling evidence that the conviction was based on flawed forensic evidence.  After the Supreme Court summarily vacated the Ninth Circuit’s decision setting aside her conviction (over a vigorous dissent by Justice Ginsburg), Reinhardt called his long-time friend and political ally, Governor Jerry Brown, and urged him to grant Smith clemency, which the governor eventually did.  Most judges believe that their job is done once the case is over; Reinhardt believed his job wasn’t done until justice prevailed. It’s hard not to admire such ardent zeal.

Stephen Reinhardt & Alex Kozinski (circa 2003)

What caused our relationship to transform from one of professional respect into a true friendship was more personal in nature. Steven was a fun guy, once you got to know him, and it turned out we had a lot in common. He loved going to the movies and the theater, he appreciated a good joke, a fine meal (albeit sans anything green), and he had a soft spot for cats. He loved songs of all kinds, especially show-tunes, and would sometimes break into song, not caring whether he got the words or melody exactly right. And Steven was a steadfast friend. The affection, patience and devotion he showed his wife, Ramona Ripston, particularly in the final years of their life together, reflected the depth of his commitment to those about whom he cared.

Farewell

I still find it hard to believe he’s gone.  I miss our frequent phone calls and visits.  Two nights before he died he called me on his way home from work. I think he was trying to apologize for having been grumpy with me the previous Sunday when I had dropped by his home to fix his TV. He didn’t like the Roku I had brought because it required him to use new technology — something he was very bad at. He was calling to tell me he appreciated my effort and would give the Roku a try. Alas, he never got the chance.

Sometimes I still reach for the phone to punch up one of the various numbers I have for him, only to realize that he won’t be picking up.  He left a hole in my life, and that of many others, and he left a large hole in our legal system which, with his passing, has become colder, less caring, less passionate, less human.  The loss is likely to be permanent because, even if there were another Reinhardt out there willing to serve as a federal judge, no president would nominate him and the Senate would certainly never confirm him. We are all the worse for it.

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FAN 194 (First Amendment News) “Cato Unbound” & Knight Institute’s “Emerging Threats” host separate online exchanges on Free Speech abroad & on the Internet

Over at Cato Unbound they have just posted an online exchange entitled “Free Speech in International Perspective.”

The lead essay is by Jacob Mchangama and is titled “How Censorship Crosses Borders.”

Jacob Mchangama describes what he terms a “cross-fertilization of censorship,” in which regimes both free and unfree are in the process of copying one another’s restrictions on expressive freedoms. More liberal countries still frequently restrict hate speech, while less liberal ones use those restrictions to justify still more restrictive acts. The world’s centuries-long march toward freedom of expression seems to have halted. Can it be restarted?

Mchangama’s essay drew a reply from Anthony Leaker and is titled Against “Free Speech”

Anthony Leaker characterizes the recent free speech “crisis” as mythical. It is the product of far-right and indeed fascist propaganda, and we can know that this is so by observing the purported victims in the “crisis:” They are right-wing, successful, and absolutely not being persecuted. Indeed, they dictate the terms of present-day debate, exactly as people like them have always done. In this way, Leaker denies that the United States has been, or is, a force for liberty at all. Political speech does well when it liberates the oppressed, but the type of speech under discussion here is nothing of the kind.

RelatedFAN 192 — The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech” (May 29, 2018)

Forthcoming

Two more essays are slated to follow:

Knight Institute’s “Emerging Threats” online symposium

Excerpt: “The United States’ internet freedom project is not just failing abroad. It is also failing at home. [T]he United States is increasingly engaged in forms of digital protectionism that it once decried. But both the commercial non-regulation principle and the anti-censorship principle are allowing real harms within the country’s borders as well. ‘[M]odern information networks and the technologies they support can be harnessed for good or for ill,’ Clinton acknowledged in her 2010 speech. The premise of the U.S. internet freedom agenda is that an open, unregulated internet is great at home on balance and thus should be exported abroad. This premise — built on an optimism about the impact of digital technologies on American public life — is now being called into question.”

“The fact that the U.S. internet freedom agenda is failing, however, does not necessarily mean that the larger project of internet freedom is failing. On the contrary, the growing detachment of this project from American commercial and ideological interests may suggest a new path forward. This is the glass-half-full perspective offered [in responses] by Nani Jansen Reventlow and Jonathan McCully, and David Kaye. While endorsing Goldsmith’s basic critique of U.S. policy, these leading international lawyers push back against the parochialism inherent in evaluating internet freedom in U.S.-centric terms.”

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted & Cases Argued 

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

Pending: Cert. Petitions 

  1. Nationwide Biweekly Administration, Inc., et al v. Perez
  2. CTIA v. City of Berkeley 
  3. Harris v. Cooper 
  4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  5. Livingwell Medical Clinic, Inc. v. Becerra
  6. Berninger v. Federal Communications Commission

Review Denied

  1. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  2. Contest Promotions, LLC., v. City & County of San Francisco
  3. Holmes v. Federal Election Commission
  4. Walker v. N.Y.C. Dep’t of Educ. et al.
  5. Shepard v. Florida Judicial Qualifications Commission 
  6. Morris v. Texas (dismissed for want of jurisdiction)
  7. Connecticut v. Baccala
  8. Tobinick v. Novella
  9. Muccio v. Minnesota
  10. Elonis v. United States
  11. 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 # 193: Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)

Next Scheduled FAN # 195: Wednesday, June 20, 2018

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FAN 193.1 (First Amendment News) First Amendment Watch to host online roundtable on Seidman’s “Can Free Speech Be Progressive?” essay

The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful.

Groups like the American Civil Liberties Union [once] managed to translate [the] right of agitation into the language of law, but the radicalism of free speech [has since been] lost in the translation.

Louis Michael Seidman

Professor Michael Seidman (credit: Book TV)

Over at First Amendment Watch Stephen Solomon and Tatiana Serafin are preparing to launch an online roundtable discussion of Professor Louis Michael Seidman’s forthcoming Columbia Law Review essay titled “Can Free Speech Be Progressive?

Below are the lineup and dates of postings:

  1. Wednesday, June 20:        Introduction & Seidman excerpt with link to his essay
  2. Thursday, June 21:            Floyd Abrams
  3. Friday, June 22:                 John Schnapper-Casteras
  4. Monday, June 25:             Jane Bambauer
  5. Tuesday, June 26:              Ronald K.L. Collins
  6. Wednesday, June 27:       Richard Delgado
  7. Thursday, June 28:           Louis Michael Seidman:  Rejoinder
  8. Friday, June 29                  Onward — Reader Responses
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FAN 193 (First Amendment News) Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)

Earlier today the Court, by a 7-2 margin, sustained the Petitioner’s Free Exercise claim in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Even so, there was much in the various opinions that either indirectly or directly addressed the Free Expression claims rasied in the case.  The sketch below, replete with eight take away points, discusses that very issue.

* * *  * * *

MAJORITY OPINION (7 votes) : #1 — Subtext: Free Expression Implications  

Two First Amendment Claims: “The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

Two Interrelated First Amendment Claims: “[Petitioner Phillips] argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs.”

“Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.”

Viewpoint Discrimination: “[T]he Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” [emphasis added]

KAGAN CONCURRENCE (Joined by Breyer): #2 — No Expressive Conduct in this Case 

No Expressive Conduct: “The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.'”

“A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. . . .” [emphasis added]

GORSUCH CONCURRENCE (Joined by Alito): #3 — Making a Cake for a Gay Marriage = Same as Celebrating Gay Marriage = Compelled Expression 

Expression without Words: “To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction.”

“Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”

“Like ‘an emblem or flag,’ a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific ‘system, idea, [or] institution.'”

Compelled Expression“Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated.”

Cake Celebrating Gay Marriage: “Suggesting that this case is only about ‘wedding cakes’—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right.”

#4 — Significant Fact: Roberts Did Not Join Gorsuch Concurrence 

Though Chief Justice John Roberts’ First Amendment free speech voting record is very speech protectiive, in this case he elected not to join the Gorsuch concurrence. Why?

THOMAS CONCURRENCE (Joined by Gorsuch): #5 — Free Expression Claim Limits Reach of Obergefell

Expressive Conduct: “The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. . . . To [Mr. Phillips], a wedding cake inherently communicates that ‘a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.’ Wedding cakes do, in fact, communicate this message. . . . Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., or flying a plain red flag, Stromberg v. California . . .” [emphasis added]

No Evidence of Communicating a Message Required: “The dissent faults Phillips for not ‘submitting . . . evidence’ that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our prece­dents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing.”

Compelled Affirmation Prohibited: “Forcing Phillips to make custom wedding cakes for same-sex marriages re­ quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”

Obergefell no Bar to Free Expression Claim: [T]he fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), [does not] somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled toexpress a different view. Id., at ___ (ROBERTS, C. J., dis­senting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage ‘long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.’ (majority opinion). If Phillips’ continued adherence to that under­ standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

Limiting Reach of Obergefell: “In Obergefell, I warned that the Court’s decision would ‘inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to partic­ ipate in and endorse civil marriages between same-sex couples.’ 576 U. S., at ___ (dissenting opinion). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting).” [emphasis added]

#6 — Roberts & Alito did not join Thomas Concurrence & Its Analysis of Obergefell 

It is notewortthy that only Justice Gorsuch was willing to sign onto the Thomas opinion. Though Justice Alito’s supportive langauage was quoted, he declined to sign onto this opinion.  Same with the Chief Justice who in the course of oral arguments in the case stated: “when the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about the decent and honorable people who may have opposing views.” Even so, he remained silent on this issue.

GINSBURG DISSENT (Joined by Sotomayor): #7 — No Free Expression Right Implicated 

No Free Expression Right: ” As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. [emphasis added]

“Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. . . . And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.”

Note that the Court’s other two liberals (Justices Kagan and Breyer) did not join Ginsburg’s dissent. Why?

#8 — Total Tallies: Seven Justices Openly Discussed First Amendment Expression Issue

  • Three Justices (Thomas, Gorsuch & Alito) supported the free expression claim
  • Two Justices (Thomas & Gorsuch) suggted that the free expression claim could not be limited by Obergefell.
  • Four Justices (Kagan & Breyer concurring / Ginsburg & Sotomayor in dissent) suggsted that there was no valid free expression claim made in this case.
  • All total, 7 Justices (everyone save Kennedy & Roberts) discussed the First Amendment free expression issue.
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FAN 192.1 (First Amendment News) Thomas & Gorsuch discuss First Amendment expression claim in Colorado baker case

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. — Justice Clarence Thomas

Justice Clarence Thomas

Today the Supreme Court rendered its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The vote in the case was 7-2 with Justice Anthony Kennedy writing for the majority and Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The majority opinion was grounded in a First Amendment free exercise claim tailored to the specific facts of the case involving some evdience of the Colorado Civil Rights Commission’s “impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” Given the basis of its ruling, the majority did not reach the baker’s First Amendment freedom of expression claims.

Writing separately, and joined by Justice Neil Gorsuch, Justice Clarence Thomas concurred in part and concurred in the judgment. Justice Gorsuch also authored a concurring opinion joined by Justice Samuel Alito.  Unlike the majority, Thomas and Gorsuch addressed the First Amendment free expression claim in their separate opinions.

Question: What are we to make of the fact that neither Chief Justice John Roberts nor Justice Samuel Alito signed onto Justice Thomas’s more expansive opinion?

Here, first, are some excerpts from Justice Thomas’s opinion:

  • Expressive Conduct: “The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. . . . To [Mr. Phillips], a wedding cake inherently communicates that “a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.” App. 162. Wedding cakes do, in fact, communicate this message. . . . Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., or flying a plain red flag, Stromberg v. California . . .”
  • No Evidence of Communicating a Message Required: “The dissent faults Phillips for not ‘submitting . . . evidence’ that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our prece­dents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing.”

  • Compelled Affirmation Prohibited: “Forcing Phillips to make custom wedding cakes for same-sex marriages re­ quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”
  • Strict Scrutiny Standard: “Because Phillips’ conduct (as described by the Colorado Court of Appeals) was expressive, Colorado’s public- accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court some­ times reviews regulations of expressive conduct under the more lenient test articulated in O’Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U. S., at 566–572 (applying O’Brien to evalu­ate the application of a general nudity ban to nude danc­ ing); Clark, 468 U. S., at 293 (applying O’Brien to evaluate the application of a general camping ban to a demonstra­tion in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand “ ‘the most exacting scrutiny.’ ” Johnson, 491 U. S., at 412; accord, Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010).”
  • “The Court of Appeals did not address whether Colo­ rado’s law survives strict scrutiny, and I will not do so in the first instance.”
  • Obergefell no Bar to Free Expression Claim: [T]he fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), [does not] somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled toexpress a different view. Id., at ___ (ROBERTS, C. J., dis­senting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.” Id., at ___ (majority opinion). If Phillips’ continued adherence to that under­ standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

  • Limiting Reach of Obergefell: “In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to partic­ ipate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting).”

Next, here are some excerpts from Justice Gorsuch’s opinion:

  • Justice Neil Gorsuch wrote a concurrence joined by Justice Samuel Alito

    Cakes Without Words Can Convey a Message “To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”

  • Making Cakes vs Conveying a Message:  “Suggesting that this case is only about ‘wedding cakes’—and not a wed- ding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; un- derstanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way.”

Note: The Gorsuch opinion, unlike the Thomas one (in which Gorsuch joined), did not mention Obergefell.  

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FAN 192 (First Amendment News) The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech”

Dr. Anthony Leaker

Who is Anthony Leaker? Answer: He is a Senior Lecturer in Cultural and Critical Theory at the University of Brighton. Now this cultural critic has turned his attention to free speech. Perhaps taking his cue from Professor Steven Shiffrin (What’s Wrong with the First Amendment), Leaker’s forthcoming book, Against Free Speech (Rowman & Littlefield, November 16, 2018), may well be yet another example of the liberal flight from robust free-speech freedom.

Abstract: This book examines the renewed and vociferous defence of free speech witnessed in relation to a number of recent events, including the Charlie Hebdo massacre, the Brexit and Trump campaigns, and recent campus politics.Anthony Leaker argues that the defence of free speech has played a pivotal role in a resurgent right-wing nationalism, that it is the rallying point for a wider set of reactionary political demands, a form of aggrieved liberalism at best and patriarchal white supremacy at worst, aided by a complicit liberal centre.

By focusing on these events and situating them within the wider geopolitical context of a post-democratic, post-truth world of austerity, ongoing conflict in the Middle East, pasokification, and rising fascism, Leaker critiques the role that the defence of free speech has played in legitimising the scapegoating of oppressed minorities while deflecting attention from the egregious operations of power that have led to ever greater inequality, injustice and capitalist destruction.

This powerful book shows that free speech is in fact a myth, an ideological tool employed by those in power to sustain existing power relations.

Yesterday: Supreme Court Denies Cert. in Commercial Speech Case

The case is Contest Promotions, LLC., v. City & County of San Francisco. The issue in the case was whether the First Amendment permits a municipality to ban all signs, of any kind, advertising off-premises commercial activity, without making any showing that the ban furthers a substantial government interest in a direct, material and tailored way.

Just Launched — The FIRE Faculty Network

This from Julia Schwarz over at FIRE: “We’re excited to announce the launch of the FIRE Faculty Network, a diverse coalition of faculty interested in defending and sustaining academic freedom, free speech, and civil liberties on campus. By joining FIRE’s faculty network, you’ll receive information curated specifically for faculty, including the latest information on FIRE events, legal developments, strategies for activism, and noteworthy research and reporting related to free speech and academic freedom.”

“If you’re a faculty member, graduate student, or higher education professional interested in getting involved or staying informed on issues related to academic freedom and free speech on campus, sign up today!”

Upcoming: 2018 Faculty Conference 

“We’re also currently accepting applications to attend our 2018 FIRE Faculty Conference, taking place October 11-13 in Chicago, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel. We’re accepting applications on a rolling basis through July 31. Apply now to secure a spot — space is limited!”

“The conference will bring together faculty from a variety of disciplines and institutions to present research and discuss issues related to academic freedom and freedom of expression on campus. Beyond these discussions, faculty will meet peers from around the country who share an interest in defending academic freedom and promoting rigorous intellectual discourse. There is no fee to attend the conference, and those accepted will be eligible for a $750 travel stipend to assist with the costs of lodging and transportation.”

“If you have questions about the faculty network or the conference, please be in touch.”

Headline:” PETA — Texas A&M is violating First Amendment rights by blocking critics online” Read More

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FAN 191.2 (First Amendment News) Floyd Abrams Weighs in on Knight First Amendment Institute’s Victory in Twitter Ruling Against Trump

Back in July of last year, Jameel Jaffer, Katherine Fallow, and Alex Abdo filed a complaint in the Southern District of New York in a case titled Knight First Amendment Institute v. Trump. The suit contended that President Trump and his communications team violated the First Amendment by blocking seven people from the @realDonaldTrump Twitter account because they criticized the president or his policies.

                                                                 

Yesterday, in a 75-page opinion Judge Naomi Reice Buchwald ruled  that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. Judge Buchwald held that the “interactive space” where people reply to  Trump’s tweets amounted to a “designated public forum.” Given that, when the White House blocked users based on their viewpoints, it violated the First Amendment.

In an op-ed in today’s Daily News, Floyd Abrams wrote: “There are aspects [of the case] that are complex. But the core of the ruling is plain. A President who uses Twitter to pronounce many of his most critical decisions and defend them to the public cannot avoid his critics or deprive them of the chance to respond in the same place and at the same time as do his supporters. Judge Buchwald’s opinion is a powerful one that sends a powerful First Amendment message.”

Related News Story 

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FAN 191.1 (First Amendment News) Abrams Institute to Host Conference on Commercial Speech & Right of Publicity

Commercial Speech & the First Amendment:

Does the Right of Publicity Transcend Commercial Speech?

From Yale Law School’s Floyd Abrams Institute for Freedom of Expression

Please join us for an in-depth discussion on right of publicity. Our keynote speaker will be Jennifer Rothman, Professor of Law at Loyola Law School, Joseph Scott Fellow, and author of the upcoming book: The Right of Publicity: Privacy Reimagined for a Public World.

  • Are there First Amendment limits to this claim?
  • What are the litigation strategies for approaching these claims?
  • And what are the legislative strategies and imperatives for legislative initiatives?

Date & Time

Monday, June 4, 2018 // 8:30 AM – 2:30 PM EDT

Does the First Amendment have anything to say here?

Moderator: Jeremy Feigelson, Debevoise & Plimpton

Panelists:

  • Robert C. Post, Sterling Professor of Law, Yale Law School
  • Jennifer Rothman, Professor of Law, Joseph Scott Fellow, Loyola Law School
  • Rebecca Tushnet, Frank Stanton Professor of the First Amendment, Harvard Law School

What content is protected? What content should be protected? How to frame the argument. Does the concept of “commercial speech” retain any relevance to the analysis?

Litigating the Claims

Moderator: Stacey Dogan, Professor, Boston University School of Law
Panelists:

  • David Schulz, Ballard & Spahr LLP
  • Nathan Siegel, Davis Wright Tremaine LLP
  • Annie Pell, NFL

What are the strategic decisions to be made? What wins, and what does not?

Legislative Initiatives: What matters

Moderator: Daniel Kummer, NBCUniversal Media, LLC
Panelists:

  • Gena Feist, TakeTwo Interactive Software, Inc.
  • Edward Rosenthal, Frankfurt Kurnit Klein & Selz PC
  • Vans Stevenson, Motion Picture Association of American, Inc.

Exceptions Clauses:

  • Do they lead courts to assume that all content is subject to ROP claims, except the exceptions?
  • How should they best be drafted?
  • What other key and contentious clauses are in the legislative mix today?
  • Are there viable compromises between the performers’ unions and the creative community on ROP statutes?

Accreditation

  • Application for New York accreditation of this program is currently pending.

Host of Conference

  • We want to thank Debevoise & Plimpton for agreeing to host the Conference this year.

Conference Sponsors: We want to thank the additional sponsors of this Conference:

  • Ballard Spahr LLP
  • Davis Wright Tremaine LLP
  • Frankfurt Kurnit Klein & Selz PC

Location

Debevoise and Plimpton, 919  3rd Ave., New York, NY 10022

Registration

Space is limited for this Conference. We anticipate a waiting list, so please do not register if you do not think you will actually attend.

REGISTER HERE

If you find that you cannot attend, please let us know ASAP. Again, we anticipate a waiting list.