Category: Constitutional Law

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FAN 190 (First Amendment News) Seattle U. Law School’s Homeless Rights Advocacy Project Issues Report on Begging Restrictions in Washington State

Jocelyn Tillisch

An important new report has just been released by Seattle University Law School’s Homeless Rights Advocacy Project. The 105-page report is titled Begging for Change: Begging Retsrictions Throughout Washington.

The report was prepared by:

The Homeless Rights Advocacy Project researched the laws of sixty-four cities across Washington State and found 121 ordinances that prohibit or restrict begging. An overwhelming number of these ordinances punish begging as a misdemeanor, inflicting on already vulnerable people ongoing and escalating collateral consequences.

Executive Summary

Drew Sena

The act of panhandling, commonly known as begging, is a constitutionally protected form of speech. But Washington’s cities are increasingly enacting ordinances that criminalizebegging. The consequences of criminalizing begging are severe and include violations of First Amendment and due process rights. Indeed, these ordinances often outlaw peaceful and nonintrusive behavior protected by the First Amendment. Some advocates assert that since 2015, “100% of federal court cases have ruled bans/restrictions [on begging] are unconstitutional.”

Further, these laws do not contribute to a solution for homelessness; instead, they function to remove visible poverty and homelessness from sight. Due to the nature and penalties of these anti-begging ordinances, the debtor’s prison grows, and the cycle of homelessness continues.

Key findings include:

  • The vast majority of Washington cities punish begging: 86% of surveyed cities have at least one law criminalizing begging in their municipal codes.
  • 83% of these laws result in a misdemeanor if violated. Criminal convictions exacerbate homelessness.8
  • Begging restrictions are proliferating: approximately 2/3 of all begging ordinances were enacted after 2001.
  • Washington’s second most popular laws are “aggressive” begging restrictions.
  • In the 1990s, courts began invalidating prohibitions on peaceful begging asunconstitutional restrictions on free speech. Many cities tried to circumvent this outcome by incorporating non-aggressive conduct into their so-called “aggressive begging” laws.
  • Only 2% of aggressive begging ordinances turn on the specific, objectively aggressive conduct of the person begging.
  • For the vast majority— 98% of aggressive begging laws—a violation can occurbased solely on a bystander’s subjective perception.
  • If a bystander feels fearful or even feels compelled to give, such feelings may be enough to make begging criminal regardless of whether the person begging has done anything objectively aggressive.
  • 42% of all aggressive begging ordinances rely exclusively on a bystander’ssubjective perception.
  • This reliance on whether a witness “subjectively” feels fear is highly problematic in light of well-established science proving people tend to feel fear simply when viewing a homeless person regardless of that person’s conduct

LSU’s Sexual Harassment Policy Challenged in Fifth Circuit

The case is Buchanan v. Alexander (No. 18-30148, 5th Cir.), which was summarily dismissed by the District Court. The matter is now before the federal circuit court.  As framed by counsel for Plaintiff-Appellant, “[t]his appeal will require the Court to interpret the law establishing limitations on a public university’s ability to terminate a tenured professor for engaging in academic speech that purportedly conflicts with anti-sexual harassment policies.”

Appellant Teresa Buchanan (credit: FIRE)

Fired LSU Professor Files First Amendment Lawsuit Challenging Speech Code Championed by Feds, FIRE, Jan. 21, 2016 (Note: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, which is part of its Stand Up For Speech Litigation Project.)

On appeal, the Plaintiff-Appellant makes the following arguments:

I.  Standard of Review

II.  LSU’S Sexual Harassment Policy is Facially Unconstitutional

A.  The First Amendment Requires Sexual Harassment Policies Targeting Speech to Be Narrowly-Framed, Precisely Defined, and Limited to Severe, Pervasive, and Objectively Offensive Behavior

  1. The Government Cannot Restrict Speech Merely to Avoid Offense, and Any Regulation of Speech Must Be Narrowly Focused and Clearly Defined
  2. Anti-Harassment Policies Are Subject to First Amendment Limits

B. The District Court Applied the Wrong Standard of Review

C. LSU’s Policy Fails to Satisfy Constitutional Scrutiny

II.  LSU’S Sexual Harassment Policy was Unconstitutionally Applied to Professor Buchanan

A. Professor Buchanan’s Speech is Constitutionally Protected

1. Academic Freedom is of “Transcendent Value”

2. The District Court Erroneously Held Dr. Buchanan’s Academic Speech Was Unprotected

a. The Undisputed Record Established That Dr. Buchanan Advanced Pedagogical Reasons for Her Speech

b. The District Court Misread the Law to Support Its Distorted View of the Record

B. LSU’s Poorly-Defined Policy and Haphazard Approach Allowed Anything to Be Defined as “Sexual

Harassment”

C. LSU’s Termination of Buchanan Violated the First Amendment

IV. Appellees Cannot Avoid Personal Liability 

→ Counsel for Plaintiff-Appellant 

U. Michigan Harassment Code Challenged  Read More

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Ira Glasser responds — Who has the power to decide? That is the free speech question

Yesterday’s post, Abandoned? The Liberal Flight from the First Amendment, drew a variety of responses e-mailed to me.  Some thought I was unduly harsh in my opening comments re conservatives and repression, while others thought I was unduly harsh on liberals. Some even thought I wasn’t being serious . . . almost as if I were doing my own variation of an old Orson Welles radio spoof. Then there were others like Ira Glasser, the former executive director of the ACLU (1978 to 2001), who kindly offered the commentary below, which I am happy to post in the spirit of robust discussion.

___________________

I write in brief response to your recent post entitled: “Abandoned? The Liberal Flight from the First Amendment.”

The key question that many “progressives” have been mostly ignoring is the question of power: Regardless of intellectual standards developed by academics to distinguish between speech that they believe has only negative or minimal value to the democratic experiment, and which therefore they believe can be distinguished from other speech and safely restricted, the only important question is who will decide how such standards are applied, and to whom.

Ira Glasser

If “offensive” speech or “hate” speech were legally unprotected by the First Amendment, whose speech would be restricted in the real world under that standard would differ depending on who had the power to decide. Donald Trump or Richard Nixon or Rudy Guiliani or Joe McCarthy would decide very differently from, say, the head of the ACLU, or the NAACP, or Catherine MacKinnon. But it is the former group, or people like them, who will more often have that power in the real world than the latter, or people like them.

The Jewish students in England in the ’70s who enthusiastically supported a student-initiated ban on racist speech were shocked when, some years later, a Zionist speaker they wanted to hear was banned under the policy they had supported. It turned out that the people with the power to decide at the time believed that Zionism was a form of racism. So the Zionist speaker was banned. The Jewish students who had supported the ban on racist speech did not get to decide.

In the ’90s in America, many black students on college campuses supported hate speech bans. But if such bans had existed, and survived constitutional challenge, during the ’60s, Malcolm X and Eldridge Cleaver, not David Duke, would have been the most frequent victims. This, of course, was not the result the black student advocates of bans on hate speech had in mind.

Speech restrictions are like poison gas, a weapon that seems seductively powerful against one’s enemies, until the political winds shift and blow the gas back at you.

At many universities today, where “progressive” faculty and administrators have decisive power, this question doesn’t arise often enough, but in the real world it is inescapable. Academics can make arguably justifiable analytic distinctions between good speech and bad, but those distinctions cannot hold in the real world where the power to decide how they are applied is often in the hands of one’s political enemies.

At the beginning of our nation, the prevailing view even among many civil libertarians of how the First Amendment should work included the belief that false speech did not deserve such protection. But as the Sedition Act of 1798, which made “false, scandalous and malicious” speech a crime, showed, the power to target disfavored political speech as “false, scandalous or malicious” (and at the very least put it on trial, and the way that law was used to prosecute and imprison political critics of John Adams), persuaded many that in order to protect true speech, false speech had to be protected as well. This was because in the world of politics and power, the ability to label disfavored speech as “false” or “malicious” would inevitably spill over onto precisely that speech the First Amendment was designed to protect, including their own.

It seems that many of today’s “progressives” have not yet learned that lesson. The ACLU has for nearly a century been the major organizational source of such learning; to the extent it transforms itself from such a source into just another “progressive” organization, the cause of free speech will be grievously diminished.

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Abandoned? The Liberal Flight from the First Amendment

A FEW CAUTIONARY WORDS – First, and apart from a few well-intended editorial swipes here and there, the following comments are meant to be primarily descriptive. Second, nothing that follows should be interpreted as a wholesale attack on the American Civil Liberties Union. As one who has long supported its efforts, and continues to do so, liberty in our nation would be impossible without its sustained and courageous efforts. Third, repression of speech has historically been the calling card of the Right and I do not mean to discount that important fact. Fourth, though preliminary in nature, the remarks that follow are a part of a stream of ideas I have had for some time and are in sync with a forthcoming essay of mine due out soon on First Amendment Watch. That essay is titled “Let us not speak falsely – A call to candor from one progressive to another.” With those four caveats, my words are now subject to public scrutiny.   

_____________________________

Repression in this country, repression of speech, has historically come from the right. . . . Now I think there is a significant movement for repression from the political left.

                                                                                   Anthony Lewis, March 13, 1994, New York Times Magazine

We have no tolerance for tolerance. That could be the liberal mantra. Tony Lewis feared the prospect then and others fear it now. Tolerance used to be the rallying cry of free-speech liberals. It was gospel in past times when intolerance afflicted the land like a cultural cancer. But no more; the old gospel has lost its staying power. The ideological winds have blown long and hard, so much so that the word that was once revered is now reviled. For many of today’s liberals, yesterday’s calling cry is past tense, something to be disregarded in modernity’s cultural wars.

Defending speech with which we differ, and which we find offensive, has always been difficult. That is why the First Amendment was such a political feat when it was ratified in 1791, and continues to be an astonishing fact of constitutional liberty so long as it is faithfully honored. Toleration (that enemy of the self-righteous) has always been at the heart of the First Amendment. But ideology makes its demands and when it does liberty is left wounded. Sensitive to such concerns, the reflections that follow (by an open-minded person with progressive tendencies) are about the liberal abandonment of the First Amendment, or much of it.

Case in point: A recent book by a noted First Amendment scholar, Professor Steven Shiffrin, reveals the seismic shifts in the conceptual and ideological lay of the land of liberal thought. The book is titled What’s Wrong with the First Amendment? (2017). In the name of liberal values, it wrecks many First Amendment precedential al pillars. More recently, Professor Louis Seidman wrote an essay for the Columbia Law Review titled “Can Free Speech Be Progressive?” His answer: no. These two authors are not the rants of fringe figures. Hardly. If anything, their words might well be seen as signposts of the past and future.

Another case in point: Not too very long ago, the Senate Judiciary Committee considered a proposal, endorsed by 42 Democrats, to amendthe First Amendment. Why? The answer is as simple as it was astonishing: Because they were outraged that the Supreme Court had vindicated First Amendment claims involving political speech in the form of contributions in an election campaign. To be more precise, but no less honest, they were livid with the Court’s handling of campaign finance cases dating back to 1976 – that is, rulings by the Burger, Rehnquist, and now Roberts Courts. (Let us not forget that liberal stalwarts such as Justices William Brennan and Thurgood Marshall signed onto some of those objectionable opinions).

In 1997, in response to similar efforts to amend the First Amendment, Senator Ted Kennedy counseled: “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception to the First Amendment. Campaign reform is a serious problem, but it does not require that we twist the meaning of the First Amendment.” But that was then. Now, carving out an exception to the First Amendment is the liberal battle cri du jour, with virtually every Democrat in the Senate then supporting the “twisting” of the First Amendment against which Senator Kennedy warned.

In the midst of the 2014 Senate Judiciary Committee hearing, Republican Senator Ted Cruz turned to the Democrats and asked: “Where did the liberals go? Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?” Cruz (who relished any chance to castigate liberals) was right. Not a single Democratic Senator defended the First Amendment against the proposal. There was, however, one lone liberal there, one who spoke out – Floyd Abrams, the famed First Amendment lawyer. Yet in today’s political climate, that defense of the First Amendment is so out of step with America’s liberal community that he had to testify at the request of then-Republican Minority Leader, Senator Mitch McConnell. Read More

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FAN 189 (First Amendment News) Justice Alito’s free speech jurisprudence continues to draw scholarly attention

Professor Garrett Epps

Justice Samuel Alito is getting ever more attention in the world of First Amendment free speech jurisprudence. Two recent pieces, one an online essay, and the other a law review essay, examine that jurisprudence.

Over at the Knight First Amendment Institute website there is a newly posted essay by Professor Garrett Epps, which is titled “Alito’s Way: Free Speech for Power, Money, and Traditional Values.” In his essay, Professor Epps focuses on the following areas of Justice Alito’s First Amendment jurisprudence:

  • Government Speech
  • Campaign Financing
  • Public Employee Unions, and
  • “Marginal” Speech & Speakers

Here is an excerpt:

“Underlying Alito’s free-speech jurisprudence is a profound anxiety about the impact of social change on those he deems worthy of protection. He combines selective empathy with an acute awareness of the sensitivities of the social groups he favors, once real or imagined majorities but now, increasingly, minorities. Alito draws from a rich rhetorical palette to describe a group’s social exclusion, fear, and isolation and the negative effects of speech. In his view, though, those feelings merit protection only when felt by the deserving — those at the center of power, wealth, and traditional values.”

* * * * 

Justice Alito may well be the justice most closely in sync with the national mood. — William Araiza

Professor William Araiza

Professor William D. Araiza has a law review essay in the Cornell Law Journal; it is titled Samuel Alito: Populist. While it is not entirely on the Justice’s free speech jurisprudnce (see Professor Clay Calvert’s article below), it does discuss it at some length. See table of contents below:

EVALUATIONS OF JUSTICE ALITO

THE EVIDENCE

  1. Caetano v. Massachusetts 
  2. Snyder v. Phelps
  3. Fisher v. University of Texas 
  4. Ricci v. DeStefano

EVALUATING THE OPINIONS

  1. Differences, Similarities, and Caveats
  2. Justice Alito’s Rhetorical Style

SAMUEL ALITO: POPULIST

Justice Samuel Alito

Related

Debate: Jeremy Waldron & Nadine Strossen on Hate Speech

Professor Jeremy Waldron

This from  Winny Sun over at the Cornell Daily Sun: “. . . .  Jeremy Waldron, University Professor at NYU School of Law, argued in favor of passing hate speech regulations. His opponent, Nadine Strossen, the John Marshall Harlan II Professor of Law, New York Law School and former president of the American Civil Liberties Union, disagreed with his stance that hate speech is not free speech.”

“Strossen began by telling the Myron Taylor Hall audience that the U.S. Supreme Court has never categorized a certain type of speech as hate speech, so hate speech is not required to be reviewed under constitutional terms.”

“She also said that she believes the government should not use its power to suppress an unfavorable idea even when it is a viewpoint that ‘the vast majority of the community despises.'”

Professor Nadine Strossen

“However, Strossen also claimed that she thought not all hate speech is immune to punishment. When the hate speech incident becomes subject to emergency principles, where it has the potential to ‘pose the greatest risk of harm’ or cause the “intentional incitement of imminent violence,” she said there are existing U.S. laws in place to deal with the case.

→ Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship (2018)

“Strossen said that she supports how the U.S. Government currently regulates hate speech since within this system, discordant ideas are not censored while the group impacted by hate speech can also be protected.”

“‘We should not suppress an idea merely because that idea is offensive to somebody, but …  if we can avoid expressing that idea in a language that is insensitive, we should do that,’  Strossen said. ‘I think there is more to gain than lose from that … individual pressure and self pressure to watch what we say and avoid hurting people without stifling our ideas.'”

“Waldron argued that legislatures should be doing what they can to ‘prevent the fermenting of communal hostility between social or religious groups’ through the passage of hate speech regulation. . . .”

“Waldron also talked specifically about hate speech and its impact on college campuses. The legal scholar said that although he acknowledged universities to be places of free inquiry where ‘free speech should be privileged,” he also believed that “the campus is a community that faces issues of vulnerability.'”

Jeremy Waldron, The Harm in Hate Speech (2014)

“‘What the university authorities have to concern themselves with … is not just the expression of hate speech …  but [how] expression of hate speech … has been intended to poison the atmosphere on campus,’ Waldron said.”

“‘People are sensitive … people worry,” he said, arguing that college and university authorities need to take this aspect into consideration in addressing the issue.’ . . .”

Flashback

Fastforward

  • Cato Speakers’ Event, Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship, May 7, 2018 9 (12:00 pm – 1:30 pm)

→Register here

Upcoming: Online symposium on Seidman essay First Amendment Watch will soon launch an online symposium to discuss Professor Professor Louis Seidman’s forthcoming essay titled Can Free Speech Be Progressive?

The list of scheduled contributors includes:

— Professor Seidman will reply to the six commentaries. (More at a future posting)

First social-media-blocking lawsuit proceeds to Fourth Circuit  Read More

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FAN 188 (First Amendment News)UW law profs release letter re applicable law governing security fees on college campuses

The protections of the First Amendment are not limited to liberals, or conservatives, or people with good ideas.The principle at issue here is not a new one. Time and again, during the difficult days of the civil rights movement, the courts held that the government cannot limit or burden speech because it is likely to provoke others to attack a speaker or his or her supporters. It was that principle that protected James Edwards when he marched to the state capitol in Columbia, South Carolina, the Reverend B. Elton Cox when he marched to the state capitol in Baton Rouge Louisiana, John Lewis when he marched to Montgomery, Alabama, Dick Gregory when he marched to the home of Mayor Daley in Chicago Illinois, and Charles Evers and Henry Aaron when they wanted to speak at the University of Mississippi and Mississippi State. However much Mr. Gibson’s views may differ from those of the civil rights heroes who established this principle, the College Republicans are entitled to invoke that same principle when he speaks at the University of Washington. — UW Law Professors’ Letter 

Skirmish at UW Patriot Prayer event (credit: Oregon.live)

The letter below was endorsed by members of the faculty of the Universty of Washington School of Law and was submitted to the President of the University, Ana Mari Cauce. The controversy that prompted the letter involved the University’s attempt to impose a fee of at least $17,000 on the College Republicans, this in connection with an event hosted by them on February 10, 2018. The group invited  Joey Gibson, a controversial speaker who heads an organization known as Patriot Prayer, to speak on that date. 

The University of Washington now plans to change its protocol regarding student-hosted events so that student organizations will not be charged for any security measures needed to protect the students, an invited speaker, or other guests from counter-protesters.

I thought this letter, prepared largely by Professor Eric Schnapper and endorsed by 22 others (including myself), was sufficiently important to post it in its entirety, including endnotes. The letter makes a strong case for First Amendment protection. Equally important, it also reveals how in the past First Amendment law was invoked to protect minority rights in contexts where unruly individuals or crowds sought to silence civil rights demonstrators or where fines or fees were imposed on civil rights groups.  

Finally, the UW Law letter provides an informative guide to much of the existing law concerning free speech rights and security fees. In that regard, it should be useful to college administrators, lawyers representing colleges, lawyers representing students and speakers, and to student organizations in general, among others.

* * * * * * 

April 4, 2018

Dear President Cauce:

President Ana Mari Cauce

We write to urge modification of the policy of the University of Washington regarding the imposition of fees for security measures taken in connection with events on campus.  As now written, the policy provides that the fee charged to a student group or other host can be based in part on the security measures needed to protect that host organization, or its guests, from possible attack by opponents who object to the views of the organization or of a speaker invited by that organization.[1]  The University is currently seeking to impose a fee of at least $17,000 on the College Republicans, in connection with an event hosted by that group on February 10, 2018, at which the invited speaker was Mr. Joey Gibson, who is the head of an organization called Patriot Prayer.  The constitutionality of that proposed fee is currently the subject of litigation pending in federal district court, and that court has already made a preliminary determination that the University’s policy is likely to be held unconstitutional.

We concur in the federal court’s preliminary determination and strongly urge you to voluntarily modify the University’s policy rather than litigating this matter further.  Specifically, we recommend that you modify the policy to preclude the imposition of any fee for security measures taken to protect a host organization, or its guests, from the hostility of others who may disagree with their views. Consistent with such a change in policy, we believe you should withdraw the pending request for reimbursement by the College Republicans insofar as it is based on such security measures.  Our views on this matter do not reflect any agreement with the views of Mr. Gibson, or with the decision to invite him to speak on campus. Below, we explain why we believe that this request is justified by law and the interests of the university.

(1) Supreme Court Jurisprudence

Professor Eric Schnapper (credit: Oyez)

The First Amendment standards applicable to this situation were established by the Supreme Court decision in Forsyth County, Georgia v. Nationalist Movement. [2]  Forsyth County, a primarily rural county near Atlanta, had a particularly troubling racial history.  In 1912 the entire African-American population was driven from the county; 75 years later the population remained 99% white.   In January 1987, Hosea Williams, an Atlanta city councilman and longtime civil rights leader, attempted to march with 90 civil rights demonstrators in the county seat.  They were met by some 400 counterdemonstrators, including members of the Ku Klux Klan, who shouted racial slogans and forced the parade to a premature halt by throwing rocks and beer bottles. Williams organized a return march the next weekend.  It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, and an Assistant United States Attorney General in a parade and rally.  The 1,000 counter-demonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen.

The actions taken to protect the demonstrators cost over $670,000.[3]  Three days after the second demonstration, “[a]s a direct result” of the demonstrations, the Forsyth County Board of Commissioners adopted an ordinance providing that individuals participating in demonstrations would be required to pay for the cost of protecting them from others.  The amount of the fee was to be based on “the expense incident to . . . the maintenance of public order in the matter . . . .”[4]   The amount of the fee was later capped at $1,000.

Several years later, The Nationalist Movement proposed to hold a demonstration in Forsyth County in opposition to the federal holiday commemorating the birthday of Dr. Martin Luther King, Jr.  The county described The Nationalist Movement as “a white supremacist group.”[5]   The county imposed a fee of $100.  The Movement did not pay the fee or hold the demonstration; instead, it filed suit challenging the constitutionality of the county ordinance.

When the litigation reached the Supreme Court, briefs in support of The Nationalist Movement were filed by a number of organizations which clearly disagreed with the racial views of the Movement.  They argued that it is unconstitutional to require speakers or groups to pay for the cost of protecting them from individuals who object to their views.  The ACLU, in a brief joined by People for the American Way, pointed out that

[t]he most predictable result of a rule assessing the speaker for the cost of controlling hostile onlookers would be to silence the speaker.  Furthermore, the likelihood of that result will only encourage counterdemonstrators to escalate their threats of violence.  The greater their threatened unlawfulness, the greater the cost to the speaker, and the less likely it is that the speech will ever take place.[6]

Joey Gibson (credit: The Columbian)

The AFL-CIO, in a separate brief, urged that “[a] government-imposed fee . . . that increases as the content of the proposed speech becomes more controversial . . . contravenes the basic principle underlying the proscriptions on content-based economic burdens on speech . . . .”[7]

The Supreme Court held that the Forsyth County ordinance was unconstitutional because the amount of a fee charged for a demonstration or parade permit was greater if the views of those participating were so unpopular that they required police protection.  “[T]he Court’s . . . First Amendment jurisprudence . . . do[es] not . . . permit”  “charging a premium in the case of a controversial political message delivered before a hostile audience.”[8]  “[T]he costs . . . are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation.”[9]  “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”[10]

The Supreme Court decision in Forsyth County rested in part on a long line of Supreme Court decisions holding that the First Amendment rights of civil rights demonstrators may not be curtailed on the ground that the expression of those views angered white onlookers.  “It is only necessary to look back a score of years in our history to find a situation in which speakers who advocated racial equality were denied their freedom of expression because of the angry response of a segment of the community to their message.”[11]  Those earlier Supreme Court opinions establish that the constitutional right of free speech cannot be vetoed by the use or threat of violence by an angry heckler. Three examples make this point.

— First, in Edwards v. South Carolina[12], the Supreme Court overturned the breach of the peace convictions of James Edwards and a group of high school and college students who had marched peacefully to the state capitol in Columbia to protest racial discrimination in the state. The demonstrators carried signs proclaiming “Down with segregation” and sang “We Shall Overcome.”  Police officials objected that the demonstration risked provoking hostile whites[13], and arrested the demonstrators when they refused to disperse.  The Court held that the First Amendment did not permit convicting the demonstrators on the ground that “the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection”[14]The state law was unconstitutional as applied because it permitted a conviction merely because speech “stirred people to anger . . . or brought about a condition of unrest.”[15]

— In Cox v. Louisiana[16], the Court overturned the breach of the peace conviction of the Reverend B. Elton Cox, a Field Secretary of the Congress of Racial Equality, who led a march of students from Southern University to the state capitol in Baton Rouge, Louisiana.  The protesters were objecting to the arrest of twenty-three fellow students who had been jailed for picketing stores in Baton Rouge that maintained segregated lunch counters.  At the end of the demonstration, Cox urged the demonstrators to seek service at segregated counters.  “The Sheriff . . . deem[ed] . . . Cox’s appeal to the students to sit in at the lunch counters to be ‘inflammatory’ . . . .”[17]  Police ordered the students to disperse and fired tear gas when the students did not leave at once; Cox was subsequently arrested.  The state sought to justify prosecuting Cox on the ground that his actions created a risk that he and the other demonstrators would be attacked by angry white onlookers.[18]  The Court held that Louisiana could not punish Cox “merely for peacefully expressing unpopular views” on the ground that his statement might “occasion” “a breach of the peace.”[19]

— Finally, in Gregory v. City of Chicago, a group of demonstrators led by Dick Gregory “marched in a peaceful and orderly process from city hall to the mayor’s residence to press their claims for desegregation of the public schools.”[20]  Gregory told marchers, “If anyone hits you or anything, try to remember what they look like, but above all means, do not hit them back.”[21]Gregory other marchers were convicted of disorderly conduct because they had provoked an angry response by white onlookers.[22]  The Supreme Court reversed, explaining that peaceful demonstrators could not be punished merely because hostile onlookers became violent.[23]  The constitutional problem, one Justice explained, was that it was “entirely possible that the jury convicted the [defendants]on the ground that Gregory and the others who demonstrated with him . . . simply because the form of their protest displeased some of the onlookers.”[24]

                       Video by David Neiwert (credit: Southern Poverty Law Center)

Edwards, Cox, and Gregory are, in turn, part of a larger and long line of Supreme Court decisions holding that constitutional rights cannot be curtailed because of the danger of violent opposition.  In the fall of 1957, a federal court ordered the admission of nine African-American students to Central High School in Little Rock.  When the students arrived on September 23, 1957, a mob of angry whites besieged the school; local police officers, unable (or perhaps unwilling) to control the crowd, decided to remove the African-American students from the school. Two days later, the President of the United States dispatched federal troops to Little Rock High School to protect the African-American students; the troops were later replaced by federalized National Guardsmen, who remained in the school protecting those students throughout the remainder of the school year. In early 1958, school officials asked the federal court to suspend desegregation of Little Rock High School because of that vehement public opposition.[25] Read More

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Deputy A.G. Rod Rosenstein to be interviewed at Newesum on May 1st, Law Day — Public invited

Newseum, Wash., D.C.

A Law Day Conversation With Rod Rosenstein, Deputy Attorney General of the United States
Tuesday, May 1, 2018 / 2:00 p.m.
Newseum, Walter and Leonore Annenberg Theater, Washington, D.C.

To commemorate Law Day, the Newseum Institute presents a special program featuring Rod Rosenstein, deputy attorney general of the United States, in a wide-ranging discussion on the rule of law, the First Amendment and the mission of the Department of Justice.

The conversation will be moderated by Ronald Collins, a constitutional law and First Amendment expert and the Harold S. Shefelman Scholar at the University of Washington School of Law.

Deputy AG Rod Rosenstein

Rosenstein was sworn in as the 37th Deputy Attorney General of the United States on April 26, 2017, and has served in the Department of Justice for nearly three decades under several presidents and attorneys general.

Law Day is held on May 1 every year to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession.

Register here (no admission charge) 4-18-18: SOLD OUT 

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FAN 186 (First Amendment News) Major new book on Anthony Comstock & his censorial crusades

“Lust on Trial” is the story of the most extraordinary efforts in American history to make us a moral Christian nation . . . . [It is the story of a man] who truly believed that lust would lead mankind to the eternal fires of hell. [Thus, it] was his mission throughout his life to destroy any materials that would arouse lust . . . . And he pursued that mission relentlessly throughout his career. — Amy Werbel 

Anthony Comstock

Anthony Comstock (1844-1915): By any and all measures, he was the greatest enemy of free speech in America; and his legacy of suppression endured long after he died. Intoxicated with his own sense of moral righteousness and obsessed with what he deemed to be immoral expression, Comstock (a devoted evangelical) went after his targets with ruthless passion. No book, dime novel, newspaper, magazine, pamphlet, manual, photograph, printing plate or even postcard was safe from his censorial clutches. This founder of the New York Society for the Suppression of Vice roamed his world searching for any signs of immorality.  Later, he succeeded in urging Congress to pass the Comstock Law. Under it, it was illegal to mail any “obscene, lewd, or lascivious” materials. Likewise, it was unlawful to print or distribute anything counseling or even discussing abortion, contraception, or the prevention of venereal disease. Armed with such powers, this special agent of the United States Postal Service prosecuted and persecuted the impure with a manic vengeance. To buttress his influence, he also wrote books — e.g. Frauds Exposed (1872) and Traps for the Young (1883)

“For more than four decades,” wrote Robert Corn-Revere, “Comstock terrorized writers, publishers, and artists—driving some to suicide . . . . George Bernard Shaw popularized the term ‘Comstockery’ to mock the unique blend of militant sanctimony and fascination with the lurid that marks American prudishness.”

David Brudnoy, Comstock’s Nemesis: Theodore Schroeder, Reason.com (Oct. 1975)

Professor Amy Werbel

The last major work on Comstock and his suppressive ways was done in 1927 by Heywood Broun and Margaret Leech; it was titled Anthony Comstock: Roundsman of The Lord

Now comes a major new book on Comstock and his censorial calling, a book a decade in the making and rich with historical details based on original sources.  The book is titled Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press). Its author is Amy Werbel who is an Associate Professor of the History of Art at the Fashion Institute of Technology.

AbstractLust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock offers a new and unadulterated view of the risqué behaviors and complex sexualities of Americans in the Gilded Age and Progressive Eras, and a fresh perspective on legal efforts to expand civil liberties before World War I. Extensive new research conducted in dozens of public and private archives makes it possible for the first time to fully tell the story of Anthony Comstock’s censorship of American visual culture, and to publish examples of the “obscenities” he suppressed. Lust on Trial illuminates the complex relationship between censorship and cultural change, and offers thought-provoking insight into our nation’s long struggle to live up to the promise of the First Amendment.

Related

YouTube video of Professor Werbel discussing her book

→ Introduction to Lust on Trial here

Publishers Weekly (review: “fascinating, page-turning study”)

→ Amy Werbel, For Our Free Speech, We Have Censors to Thank, Chronicle of Higher Education, Sept. 14, 2015

Advance Praise

“Amy Werbel’s Lust on Trial offers a brilliant analysis of the life and times of Anthony Comstock, the fiercely religious moralist who led the national campaign to rid the United States of sexual expression from 1873 until his death in 1915. As Werbel powerfully demonstrates, Comstock’s efforts to persuade the nation that such expression “corrupts the mind . . . and damns the soul” perilously threatened our nation’s separation of church and state. This lesson in how religious fanaticism can destroy our freedom is now more important than ever.” – Geoffrey R. Stone

 “In this vibrant history, Amy Werbel explores the legal and cultural battles surrounding the censorship of “obscene” materials in late nineteenth and early twentieth century New York. Lust on Trial not only mines the history of censorship and repression in a modernizing America, but also sheds light on its legacy for current debates.” – Nadine Strossen

Discounted priced for FAN readers

 If you add the book to your cart, you can then use the code cup30 for a significant discount, go here

(look for discount code box — $10.50 off the $35.00 list price — much cheaper than Amazon!)

Association of University Presses issues statement on censorship

The Association of University Presses (AUPresses) yesterday issued a statement of guiding principles addressing attempted censorship in a global network of scholarly communications. The Board of Directors of AUPresses approved the statement to affirm “the fundamental importance of the integrity of the scholarship entrusted to us and the essential role of university presses in supporting the values which safeguard that integrity.”

University presses around the world serve scholars — as authors and readers — on a global scale, with local impact. The Association understands that in this more closely networked world, publishers may receive more frequent requests to censor or otherwise alter the content they have published.

“All attempts to censor the scholarly record must be met with the deepest concern,” reads “Facing Censorship: A Statement of Guiding Principles.” The Association recognizes that individual publishers may be faced with difficult situations, wherein the theoretically complementary values of access and integrity, intellectual freedom and cultural sensitivity, equal treatment of customers and the safety of staff, may suddenly be in tension. A publisher should be able to turn to the support of its home institution and the community of university presses when facing such challenges.”

Nicole Mitchell (credit: Hayley Young)

“We have recently seen cases where scholarly publishers have been forced to grapple with these issues in real time. Good faith arguments attempt to balance questions of access and integrity with sometimes very different results, and we all recognize the seriousness of any ultimate decision,” said Peter Berkery, AUPresses Executive Director.

Nicole Mitchell, Association President, and Director, University of Washington Press, added, “The board felt that it was important for the Association to make a clear affirmation of our community’s values and to provide some guidance for any of our member presses who may be called upon to change the shape of the scholarly record.”

Headline — “First Amendment: Skim Milk Labeling Leads Maryland Dairy to Sue FDA” Read More

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

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

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

Sheldon G. Adelson

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

Lee Levine (one of the lawyers for the Defendants)

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

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

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

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

Counsel for Defendants

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

Former American Icon contestant loses false-light claim

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

Corey Clark

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

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

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

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

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

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

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

Virginia’s restrictive ‘happy hour’ advertising rules challenged Read More

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Is Law Political? — A View from an appellate court litigator in India

The common judge is not an umpire anymore: neutral objective reasoning is impossible because the law does not operate in a vacuum. –– Rahul Unnikrishna

A television journalist sets his camera inside the premises of the Supreme Court in New Delhi, India, February 18, 2014. REUTERS/Anindito Mukherjee/File Photo

This from a review by Rahul Unnikrishnan in The Wire (India).

“In The Judge: 26 Machiavellian Lessons, Ronald Collins and David Skover strive to answer the question ‘is law political?’ in an unconventional way by dissecting the unpleasant hypocrisies of the common judge, who is a political actor.

“There are truths and there are unpleasant truths: unpleasant truths, especially about judges in a democratic society, are closely guarded, and not spoken about. Collins and Skover break the conventions and chart out 26 “tactics” the US judges use, which summarise the extent of judicial politics in the dispensation of justice.”

Rahul Unnikrishnan

“Machiavelli’s exposition of politics and an unrivaled analysis of the hues of tyrannical political power find its judicial equivalent (Juristocracy, as Ran Hirschl puts it in Towards Juristocracy) in this book. The chapters of this book have been modeled on The Prince – both have 26 chapters. Of course, the way the actors wielded power in those days were different; crass physical force is not required to assert power now. On the other hand, the judicial power exercised by judges is hard to contain as the law is an interconnected web of words that expands and shrinks depending upon the gravity of the underlying variables.”

“What is the nature of power a judge wields? Collins and Skover argue that judicial interpretation of the law is a power of great moment. Indeed, they rightly say that at some point, the interpretative power becomes power to make the law. How else can we but describe the judges of the Supreme Court of India than as “lawmakers”? The explosion of public interest litigations in India is nothing but a judicial revolt against the apathies of the legislature and the executive. Good or bad, this, according to Collins and Skover, will be a classic example of judges, through judicial innovations, translating his or her will into law.”

. . . .

“Chapter 7 (‘Carpe Diem: When to Embrace a Case’) of the book is based on the premise that power and glory sometimes wait for one to embrace them. Justice [Jagdish Singh] Khehar’s tenure as the Chief Justice of India is the best example in the Indian context. It is not a secret that Justice Khehar was quite obstinate in not constituting a bench to hear the challenge to the Aadhaar Act. And when Justice Khehar finally decided to constitute a bench, it so happened that the judgment was given on the last week of his tenure – suddenly, the Supreme Court recognised the existence of the right to privacy for Indian citizens.”

“Though Justice Khehar did not write his opinion in the judgment, he will now be praised by legal historians as the Chief Justice who constituted a nine-judge bench to hear the right to privacy issue. This is best described by the authors: ‘And when the time is ripe, one has to do little more than pick the fruits of fame.’ . . . .”