FAN 180 (First Amendment News) Cert. Petition — Does Renton v. Playtime Theatres’ Secondary Effects standard of review survive Reed v. Town of Gilbert?
His name is J. Michael Murray. He is a criminal defense lawyer out of Ohio. He is also a First Amendment lawyer and past president of the First Amendment Lawyers Association. Mr. Murray Murray is distinguished in The Best Lawyers in America in two separate categories: First Amendment Law and White Collar Criminal Defense, both of which include cases that have taken him to courts throughout the nation.
Among other First Amendment cases, he successfully argued Free Speech Coalition, Inc. v. Attorney General of the U.S. (3rd Cir. 2016) (majority opinion per Smith, J.: “We deem it significant that the Supreme Court has never actually applied the secondary effects doctrine outside the realm of brick-and-mortar purveyors of adult sexually explicit content. We decline to do so now, because any application of the secondary effects doctrine beyond what the Supreme Court has explicitly endorsed would bring this case into direct conflict with Reed’s pronouncement that we cannot look behind a facially content-based law to a benign motive in order to shield the law from the rigors of strict scrutiny.”)
Now Mr. Murray has filed a cert. petition in the case titled Flanigan’s Enterprise, Inc. v. City of Sandy Springs (11th Cir. per curium opinion here), a case that raises some important First Amendment questions. The trhee issues presented in the case are the following:
- The secondary effects doctrine of Renton v. Playtime Theatres, Inc. (1986), provides that content-based regulations avowedly aimed at adverse secondary effects associated with businesses offering sexually oriented expression are to be reviewed under intermediate, rather than strict, scrutiny. Does that doctrine survive Reed v. Town of Gilbert, (2015), which holds that facially content-based laws are subject to strict scrutiny, regardless of their content-neutral justifications?
- City of Los Angeles v. Alameda Books (2002), is a plurality decision addressing the evidentiary burdens under the secondary effects doctrine. If the secondary effects doctrine survives, does Justice Kennedy’s concurrence constitute the holding of that case as representing the narrowest ground supporting the judgment, as the Sixth, Seventh, Eighth, Ninth Circuits, and prior panels of the Eleventh Circuit have held, or is Justice Kennedy’s concurrence not binding precedent, as the court below concluded?
- Marks v. United States (1977), held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’” Under Marks:
- may a concurring opinion qualify as the holding even if it does not share common reasoning with the plurality opinion, as the Eleventh Circuit has held? United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017) cert. granted, No. 17-155, Dec. 8, 2017, or
- must it be “in harmony” with the plurality opinion to qualify as the holding, as the court below held? or
- must it be a “logical subset” of the other broader opinions in the case to qualify as the holding, as the Ninth and D.C. Circuits, have held? United States v. Davis, 825 F.3d 1014, 1021 (9th Cir. 2016) (en banc); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).
(ht: David Keating)
Headline: ‘Free Speech’ Suit Aims to End Twitter’s Political Censorship
This from Ian Mason at Breibart News (Feb. 23, 2018)
“A group of free-speech lawyers [led by Marc J. Randazza] filed the most serious legal challenge yet to Twitter’s censorship policies Tuesday in San Francisco County Superior Court, seeking a ruling preventing Twitter from banning users purely on the basis of their views and political associations.”
“The 29-page complaint contends that, under a California legal doctrine that recognizes some private facilities as “public forums,” Twitter may not discriminate against speech on their platform based purely on viewpoint. If successful, it would be the first extension of that doctrine to internet social media platforms and could transform the way free speech is treated online. The suit became all the more relevant Wednesday as Twitter stood accused of locking out thousands of conservatives under the guise of cracking down on ‘Russian bots.'”
The genesis of the suit is Twitter’s November 2017 announcement that they would start banning and sanctioning users based on their offline behavior and associations. On December 18, 2017, Twitter, five years after their top British executive described the company as “the free speech wing of the free speech party,” made good on this threat, ‘purging’ hundreds of mostly right-wing users. Twitter’s new policy refers to association with “violent extremist groups,” and a company blog post claimed, ‘If an account’s profile information includes a violent threat or multiple slurs, epithets, racist or sexist tropes, incites fear, or reduces someone to less than human, it will be permanently suspended.’ . . .”
Former Dow Jones GC to Oversee First Amendment Clinic
From Susan DeSantis writing in the New York Law Journal: “With free speech debates raging on college campuses and journalists under attack, Cornell Law School is launching a First Amendment clinic under the leadership of former Dow Jones General Counsel Mark Jackson.”
“Jackson, a First Amendment expert and a 1984 graduate of the law school, is overseeing the clinic at the request of Dean Eduardo Peñalver. Jackson hopes the clinic — one of a growing number with such an emphasis — will have a national impact although it will primarily represent clients in upstate New York, western Pennsylvania and eastern Ohio.”
“‘We are really excited to have the Cornell program coming online in the fall.’ said Bruce Brown, a former partner in the D.C. offices of Baker & Hostetler and the executive director of the Reporters Committee for Freedom of the Press. ‘It just feels in so many different ways like our moment.'”
“The Cornell clinic and clinics launching in the fall at Vanderbilt, Duke and Arizona State law schools are needed to counter the Trump administration’s attacks on the press, meet American Bar Association requirements for experiential learning and help state and local journalists who don’t have access to lawyers, Brown said.”
“‘That is a lot of new capacity coming online and that is extremely encouraging to us who’ve been working in this area for the last couple of years,” Brown said.”
“Under the auspices of the Reporters Committee, the Cornell clinic, The Civil Liberties & Transparency Clinic at the University at Buffalo School of Law and other such clinics and nonprofits are forming a nationwide coalition to serve as a clearinghouse for journalists. The coalition is so new, in fact, that it doesn’t yet have a name. . . .”
Like father, like son
“Jackson has his father to thank [for his interest in a free press]. Paul Jackson was a journalist who founded the local newspaper, The Bellmore Chronicle and is best known for his work on The Long Island Independent. He often told his four kids—Mark was second—about his battles for the public’s right to know about school board and sewer committee meetings. Jackson vividly remembers hearing the oft-told story of how city officials had tried to close a city council meeting his father was covering. His father stood up and objected that closing the meeting was a violation of state law and the First Amendment, refusing to leave until he was escorted out. His four children were proud of their dad, who went on to work for Esquire and the New York Post. [Source: Business Edition Super Lawyers by Timothy Harper]
- Richard Hasen, Free Speech vs. Freedom From Intimidation, Slate, Feb. 27, 2018
Today “the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a ‘Make America Great Again’ cap or a ‘pussyhat’ to the polling place. . . .”
“Political speech is perhaps the most protected form of speech under the First Amendment, but the right to vote free of intimidation and in tranquility is also compelling. The Supreme Court recognized this point in Burson v. Freeman, which upheld against a First Amendment challenge a 100-foot campaign-free buffer zone around polling places. The case was an unusual one in that a plurality of the court applied “strict scrutiny” to the Tennessee law and still upheld the law. Strict scrutiny is usually said to be “strict in theory and fatal in fact,” but in this case, it was the former.”
“The usual stalwarts of the First Amendment, including Justices Anthony Kennedy and Antonin Scalia, concurred separately to uphold the law. Justice Scalia’s opinion was especially notable, because he recognized that polling places—and the areas around them—traditionally were “nonpublic forums,” places where the government can stop political expression for important reasons so long as the government does not discriminate among viewpoints. If Minnesota had sought to ban Tea Party paraphernalia but allowed “MoveOn.org” T-shirts, that would have clearly been unconstitutional. . . .”
“In many ways this case is even stronger than Burson, because it involves not the area around polling places but polling places themselves, and because voting has only become more contentious in the intervening years. As a Brennan Center brief in Mansky points out, ‘Please I.D. Me’ buttons are part of a political movement raising fears of voter fraud, and such buttons can both intimidate and confuse voters and poll workers. But more generally, a voter should not have to come into the polling place to face a group of voters—or even poll workers—wearing campaign buttons or shirts. No one should feel pressure at the polling place to vote one way or another.”
“The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground. . . .”
→ George Will, With case on coerced union fees, the Supreme Court has a chance to correct itself, Washington Post, Feb. 22, 2018
ACLU’s Lee Rowland discusses campus free speech “realities and myths”
This from Adam Steinbaugh writing for FIRE (Feb. 26, 2018) “‘My name is Lee Rowland. I’m an unabashed progressive. I’m a skeptic. I’m anti-authoritarian. For all of those reasons, I believe in a robust and indivisible First Amendment.'”
“That’s how Lee Rowland, a First Amendment attorney with the ACLU’s Speech, Privacy, and Technology Project, concludes her TEDx talk at the University of Nevada, Reno — a short discussion of the importance of free speech, on and off campus, that is well worth your time.”
“Rowland summarizes free speech issues confronting society today — from Colin Kaepernick to hate speech — and places them in the context of freedom of expression in higher education. She explains that skepticism of whether constitutional rights are equally distributed is well warranted — and not just those recognized by the First Amendment — but the answer is not to draw back on free speech rights, but instead to ‘ratchet everybody up to that same level of protection for constitutional rights.” It’s ‘our job to make sure that everybody benefits from those rights.’ . . .”
Sign Controversy in N.H. Town
→ Casey McDermott, In Gilmanton, Lawn Sign Scuffle Turns Into Debate Over the First Amendment, New Hampshire Public Radio, Feb. 28, 2018
Seven Forthcoming Books