Category: First Amendment

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FAN 138 (First Amendment News) Forthcoming book: “Unsafe Space: The Crisis of Free Speech on Campus”

A call to arms for studnets and academics who want to turn the tide on campus censorshipNadine Strossen 

Tom Slater

Seattle. He is the  deputy editor at Spiked, a British Internet magazine focusing on politics, culture and society from a libertarian viewpoint. His name is Tom Slater and he is the editor of a forthcoming book entitled Unsafe Space: The Crisis of Free Speech on Campus (Palgrave Macmillan, May 25, 2016). Here you can see young Slater speaking with calculated fervor on British TV while attacking those who would censor campus speech.

Here is the publisher’s summary of the book consisting of ten essays:

The academy is in crisis. Students call for speakers to be banned, books to be slapped with trigger warnings and university to be a Safe Space, free of offensive words or upsetting ideas. But as tempting as it is to write off intolerant students as a generational blip, or a science experiment gone wrong, they’ve been getting their ideas from somewhere. Bringing together leading journalists, academics and agitators from the US and UK, Unsafe Space is a wake-up call. From the war on lad culture to the clampdown on climate sceptics, we need to resist all attempts to curtail free speech on campus. But society also needs to take a long, hard look at itself. Our inability to stick up for our founding, liberal values, to insist that the free exchange of ideas should always be a risky business, has eroded free speech from within.

To give the book added spark, in his introduction Slater (a Brit) draws his inspiration from the Berkley free-speech movement of 1964 when students rebelled against the “university bureaucrats who severely limited students’ ability to speak freely and organize politically on campus.”

↓ Below is the list of contributors (many from Spiked): ↓

Introduction, Tom Slater, Reinvigorating the Spirit of ’64

Chapter 1: Brendan O’Neill, From No Platform to Safe Space: A Crisis of Enlightenment

Chapter 2: Nancy McDermott, The ‘New’ Feminism and the Fear of Free Speech

Chapter 3: Tom Slater, Re-Educating Men: The War on Lads and Frats

Chapter 4: Joanna Williams, Teaching Students to Censor: How Academics Betrayed Free Speech

Chapter 5: Greg Lukianoff, Trigger Warnings: A Gun to the Head of Academia

Chapter 6: Sean Collins, BDS: Demonising Israel, Destroying Free Speech

Chapter 7: Jon O’Brien, Debating Abortion on Campus: Let Both the Pro and Anti Sides Speak

Chapter 8: Peter Wood, A Climate of Censorship: Eco-Orthodoxy on Campus

Chapter 9: Tom Slater, Terrorism and Free Speech: An Unholy Alliance of State and Students

Chapter 10: Frank Furedi, Academic Freedom: The Threat from Within

Conclusion: Tom Slater, How to Make Your University an Unsafe Space

If you’re really serious about challenging prejudice, censorsing bigots is the worst thing you can possibly do. . . . It effectively buries our heads in the sand. It stops us from locating those views, arguing against them, and then discrediting them in the public forum. Censorship makes these problems worse, not better. — Tom Slater

→ Lee v. Tam (the “Slants” case) to be argued today (see here re Washington Post interview with the bands’ members)

From SCOTUSblog: “Argument analysis: Merchants seem to fall short in challenge to New York statute banning credit-card ‘surcharges'”

Professor Ronald Mann

This from Professor Ronald Mann writing in SCOTUSblog: “The oral argument . . . in Expressions Hair Design v. Schneiderman brought the justices face to face with the battle between merchants and credit-card networks over the “interchange” fees that merchants pay when they accept cards in retail transactions. The dispute that got the fees before the justices involves a New York statute that says that ‘[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.’ The petitioner, Expressions Hair Design (leader of the group of merchants challenging the provision), argues that the statute violates the First Amendment because it limits a merchant’s right to describe the extra costs imposed on purchasers using credit cards as ‘surcharges.'”

“For a case into which so many groups poured so much effort (23 amicus briefs), the argument must have been deeply frustrating, because the most prominent thing not on display was any strong inclination to address the case head-on. Three themes dominated the argument. The first was a considered refusal of the parties to join issue about what the statute actually means. Representing the merchants, Deepak Gupta insisted that the statute prevents merchants from posting separate cash and credit prices and that the state of New York has no justifiable reason to do so. Representing the state, Steven Wu insisted that the statute is aimed only at “bait-and-switch” pricing – when a retailer posts a single price but then asks for a higher price at the register for customers who pay with cards. . . .”

David Cole: “Donald Trump vs the First Amendment”

The ACLU’s David Cole

That is the title of a new piece just published in The Nation.  David Cole, the ACLU’s new National Legal Director, took First Amendment aim at President-elect Donald Trump. Here are a few excerpts:

“Donald Trump has no particular reverence for the First Amendment. He may not even understand it very well. During the campaign, Trump said he would “open up” libel law so that newspapers could more easily be sued. As president-elect, he tweeted that those who burn the American flag should be stripped of their citizenship and jailed. These threats are constitutional nonstarters. There is no federal libel law to “open up”: Libel is a matter of state law, and to the extent it is governed by federal law, it’s the First Amendment that governs. Similarly, the Supreme Court held in 1989 (in a case I litigated) that the First Amendment protects flag-burning and ruled in 1967 that citizenship is a constitutional right that cannot be taken away as punishment under any circumstances—not for murder, not for treason, and certainly not for flag-burning.”

“. . . The First Amendment itself serves a critical checking function, by safeguarding the rights of citizens to criticize government officials, to associate with like-minded citizens in collective action, and to petition the government for redress of grievances. It is this First Amendment tradition that protects the institutions we will rely on to push back against Trump’s abuses.”

“The press has its own express protection in the First Amendment, and it will play a critical role in bringing abuses to light and arming citizens with information and arguments. Think Watergate. The academy, protected by the doctrine of academic freedom, will also be essential—questioning Trump’s policies, providing empirical evidence to refute his assertions, and educating citizens about the value of our civil liberties and civil rights. And the nonprofit sector, including organizations such as Planned Parenthood, the NAACP Legal Defense Fund, the ACLU, the American Immigration Lawyers Association, 350.org, and the groups that comprise the Movement for Black Lives, will be a focal point for organizing, educating, litigating, and inspiring resistance. If we are saved, it will be thanks to actions by citizens exercising their First Amendment rights against Trump. . .”

Massaro, Norton & Kaminski on Artifical Intelligence and the First Amendment 

Professor Toni Massaro

The article is entitled Siri-ously 2.0: What Artificial Intelligence Reveals about the First Amendment. It is scheduled to be published in the Minnesota Law Review. The authors (three tech-savvy and free-speech- informed scholars) are Toni Massaro, Helen Norton, and Margot Kaminski. Here is the abstract from this cutting-edge article:

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Professor Margot Kaminski

Courts and commentators wrestling with free speech problems increasingly focus not on protecting speakers as speakers but instead on providing value to listeners and constraining the government’s power. These approaches to free speech law support the extension of First Amendment coverage to expression regardless of its nontraditional source or form. First Amendment thinking and practice thus have developed in a manner that permits extensions of coverage in ways that may seem exceedingly odd, counterintuitive, and perhaps even dangerous. This is not a feature of the new technologies, but of free speech law.

Professor Helen Norton

The possibility that the First Amendment covers speech by strong AI need not, however, rob the First Amendment of a human focus. Instead, it might encourage greater clarification of and emphasis on expression’s value to human listeners — and its potential harms — in First Amendment theory and doctrine. To contemplate — Siri-ously — the relationship between the First Amendment and AI speech invites critical analysis of the contours of current free speech law, as well as sharp thinking about free speech problems posed by the rise of AI.

 Related & Forthcoming: Collins & Skover, Robotica: The Discourse of Data (Cambridge University Press, 2018).

Forthcoming Books Read More

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FAN 137 (First Amendment News) Backpage.com removes adult content due to government censorship — vows to fight First Amendment battles

Seattle. This from a press release from Backpage.com:

As the direct result of unconstitutional government censorship, Backpage.com has removed its Adult content section from the highly popular classified website, effective immediately. For years, the legal system protecting freedom of speech prevailed, but new government tactics, including pressuring credit card companies to cease doing business with Backpage, have left the company with no other choice but to remove the content in the United States.

As federal appeals court Judge Richard Posner has described, the goal is either to “suffocate” Backpage out of existence or use the awesome powers of the government to force Backpage to follow in the footsteps of Craigslist and abandon its Adult advertising section. Judge Posner described such tactics as “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.” [Backpage.com v. Dart, 7th Cir., 2015]

“It’s a sad day for America’s children victimized by prostitution,” said Dr. Lois Lee, Founder and President, Children of the Night, a leading national hotline and shelter program for victims of sex trafficking based in Los Angeles. “Backpage.com was a critical investigative tool depended on by America’s vice detectives and agents in the field to locate and recover missing children and to arrest and successfully prosecute the pimps who prostitute children.” She added, “The ability to search for and track potentially exploited children on a website and have the website bend over backwards to help and cooperate with police the way Backpage did was totally unique. It not only made law enforcement’s job easier, it made them much more effective at rescuing kids and convicting pimps.”

Backpage.com was created thirteen years ago by Jim Larkin and Michael Lacey, through their newspaper company, New Times Media, to compete with Craigslist, the nation’s largest online classified ad platform. Larkin and Lacey were pioneers in independent journalism, establishing Village Voice Media in 1970 to provide alternative news coverage of the Vietnam war and later served as editor and publisher of twenty weekly newspapers.

As The Center for Democracy and Technology and the Electronic Frontier Foundation have observed, the Senate subcommittee has engaged in an “invasive, burdensome inquiry into Backpage.com’s editorial practices [that] creates an intense chilling effect, not only for Backpage but for any website operator seeking to define their own editorial viewpoint and moderation procedures for the third-party content they host.” [amicus brief below]

This will not end the fight for online freedom of speech. Backpage.com will continue to pursue its efforts in court to vindicate its First Amendment rights and those of other online platforms for third party expression.

 Appellants’ Reply Brief, Ferrer v. Senate Permanent Subcommittee on Investigations (D.C. Cir., oral arguments pending)

Lawyers for Backpage.com re Appellants’ Reply Brief:

  • Steven R. Ross & Stanley M. Brand (Akin Gump Strauss Hauer & Feld)
  • Robert D. Luskin, Stephen B. Kinnaird, & Jamie S. Gardner (Paul Hastings)
  • Robert Corn-Revere & Ronald London (Davis Wright Tremaine)

Amicus Brief on behalf of DKT Liberty Project, Cato Institute & Reason Foundation (supporting Appellant) (counsel: Jessica Ring Amunson & Joshua M. Parker (Jenner & Block))

Jessica Ring Amunson, Joshua M. Parker, Ilya Shapiro, & Manuel S. Klausner, Ferrer v. Senate Permanent Subcommittee on Investigations, Cato Institute, Nov. 22, 2016

Related links

Cert Petition: Case to Watch 

The case is is McKay v. Federspiel in which a cert. petition has just been filed in the Supreme Court.  The issues in the case are:

1. Whether a law criminalizing protected speech or conduct implies a threat to prosecute such that a pre-enforcement challenge is proper without any additional showing that enforcement is imminent.

2. Whether, absent extenuating circumstances, there is a constitutional right to make a public recording of courtroom proceedings.

Summary of Facts: the chief judges of Saginaw County, Michigan issued a joint administrative order limiting the use of electronic devices in courtrooms and court-related facilities in the Saginaw County Governmental Center. Robert McKay, a resident of neighboring Tuscola County who states that he wishes to record law enforcement officers’ and judges’ activities inside the Governmental Center, contends that the administrative order violates his federal constitutional rights.

Sixth Circuit opinion (here)

Lead counsel for Petitioner: John J. Bursch 

Andy Hoag, Federal judge: Saginaw County cellphone ban not unconstitutional; preliminary injunction denied, Michigan Live, April 18, 2014

[ht: A.L.]

Court Denies Cert. in Internet Communications Case

On Monday the Court denied cert in Flytenow, Inc. v. Federal Aviation Administration. One of the issues in the case was: whether the circuit court erred in holding that the Federal Aviation Administration could, consistent with the First Amendment, lawfully discriminate against content-based Internet communications because of the message conveyed and the means chosen by pilots to convey it.

[ht: Art Spitzer]

Public Employee: No 1-A protection for racial epithet Read More

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FAN 136.1 (First Amendment News) Nat Hentoff, First Amendment Champion, Dies

Sad to report the death of my father tonight at the age of 91. He died surrounded by family listening to Billie Holiday. — Nick Hentoff

Seattle. He was a friend, an inspiration, and someone who led the kind of life that so many long to live but are afraid to do so. When Ira Glasser shared the news, I left a party and went back to a quiet place to listen to Miles Davis’ Blue in Green . . . and then I turned off the lights and just sat and thought of Nat.

Perhaps no person better embodied the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff (1925-2017) (AP obit here)

Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There was also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it made him. Some liberals loved him, some conservatives admired him, and some libertarians applauded him — but very few came along for the full Hentoff monty. And that’s the way he liked it! If you have an open mind and a tolerant side, you had to love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the 2013 documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

 Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

Nat Hentoff on Bill Buckley's Firing Line

   Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat’s books on free speech and related topics include the following:

See also Ronald Collins & David Skover, The Trials of Lenny Bruce (2002) (cd narrated by Nat Hentoff)

Video clips

       Hentoff & Allen Ginsberg on Charlie Rose (1995)

 Nat Hentoff on Free Speech,Jazs, & FIRE (this is precious!)

 See and hear the man himself on this Brian Lamb, C-SPAN interview with Nat (go here).

 And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

 One more — this, too, is precious: The young Nat debating the young Bill Buckley on Firing Line.

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FAN 136 (First Amendment News) 2016: The Year in Review, including “the best of”

This is the 43rd and last FAN post for this year. All the hyperlinked posts for this year are listed below by month. Also below are some highlights of the past year along with a few “best ofs” of 2016:

Selected Highlights

Deaths: Justice Antonin Scalia. See FAN 97.1: Justice Scalia Dies — Free-Speech Legacy (Feb. 13, 2016)

Supreme Court: The Court decided two First Amendment free speech cases:

Retirements: Steven Shapiro, the ACLU’s national legal director

Biggest First Amendment issue of 2016: Campus free-speech controversy (yet again!)

Beta launch of FIRE’s online First Amendment Library (Nov. 14, 2016)

Man of the Year

John Ellison, University of Chicago Dean of Students

Letter to the Class of 2020

Woman of the Year

Rhode Island Governor Gina Raimondo

vetoes overbroad “revenge porn” bill

___________________________________________

The First Amendment & The Best of 2016

unknown

 Best Supreme cert. petition: Deepak Gupta, brief in Expressions Hair Design v. Schneiderman

 Best Supreme Court amicus briefs:

Best Supreme Court oral argument: Thomas Goldstein in Heffernan v. City of Patterson (2016)

Best lower court First Amendment opinionWomen’s Health Link, Inc. v. Fort Wayne Public Transportation Corp. (7th Cir., 2016, per Posner, J.)

Best lower court amicus briefWikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

 Best new First Amendment organization: Knight First Amendment Institute (see here)

 Best group defending First Amendment rightsFoundation for Individual Rights in Education (FIRE)

 Best report: PEN America, And Campus for All: Diversity, Inclusion & Free Speech at U.S. Universities

 Best speech: Geoffrey Stone, “Free Speech on Campus: A Challenge of Our Times

 Best interview: Nico Perriono, The Daughters: Carlin, Pryor & Bruce Speak OutSo to Speak

 Best book: Stephen Solomon’s Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (see Salon discussion here)

Best documentaryCan We Take a Joke?

Best essays:

 Best law review articles:

Best scholarly conferenceBrooklyn Law Symposium: “Free Speech Under Fire — The Future of the First Amendment” (see also here)

Best conference for practitionersAbrams Institiute Conference on Commercial Speech (June 13, 2016)

Best new First Amendment blogIn A Crowded Theater

Best event: Newseum Institute: Pear v. United States (see also here)

Best funder of First Amendment:  John S. and James L. Knight Foundation (see here)

Best supporter of the First Amendment: Flying Dog Beer (see here and here)

→ The Year in Review: FAN Posts for 2016 ← 

January

FAN 92: Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition (Jan. 6, 2016)

FAN 93: “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer (Jan. 13, 2016)

FAN 94: Brooklyn Law School to Host Symposium: “Free Speech Under Fire — The Future of the First Amendment” (Jan. 20, 2016)

FAN 95: “Fifty Shades of Grey” too Blue for Idaho? (Jan. 27, 2016)

February

FAN 96: Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture (Feb. 3, 2016)

FAN 97: Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern? (Feb. 10, 2016)

FAN 98: The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive? (Feb. 17, 2016)

FAN 99: Welcome to the Marketplace of Ideologies — Where Ideas go to Die (Feb. 24, 2016)

March

FAN 100: FIRE Spreads — Group to Launch Online First Amendment Library (March 9, 2016)

FAN 101: Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co. (March 16, 2016)

FAN 102: Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker (March 23, 2016)

April

FAN 103: Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era (April 6, 2016)

FAN 104: Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center (April 13, 2016)

FAN 105:  Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech” (April 20, 2016)

FAN 106:  The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive (April 27, 2016)

May 

FAN 107:  FTC’s Power to curb misleading ads remains intact (May 4, 2016)

FAN 108: Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play (May 11, 2016)

FAN 109: Abrams Institute to Host Event on Commercial Speech (May 18, 2016)

FAN 110:  Steve Shapiro to Step Down as ACLU’s Legal Director (May 25, 2016)

June

FAN 111: Flying Dog Brewery Launches First Amendment Society (June 1, 2016)

FAN 112:  “Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet” (June 8, 2016)

FAN 113: “Abrams Court” Breaks with Tradition & Allows Cameras in Courtroom (June 22, 2016)

FAN 114: 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied (June 29, 2016)

July

FAN 115: Profile: Jameel Jaffer to Head New Knight First Amendment Institute (July 6, 2016)

FAN 116: Farber on Scalia & the Abortion Protest Cases (July 13, 2016)

FAN 117: Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law (July 20, 2016)

FAN 118: University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents (July 27, 2016)

August

FAN 119: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 17, 2016)

FAN 120: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 24, 2016)

FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU (Aug. 31, 2106)

September 

FAN 122: Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine (Sept. 7, 2016)

FAN 123: When you think of free speech, think of “45” — New book by Stephen Solomon (Sept. 13, 2016)

FAN 124:  Ellen DeGeneres raises First Amendment defense in defamation case (Sept. 21, 2016)

FAN 125: Forthcoming book spotlights First Amendment freedom & LGBT equality (Sept. 28, 2016)

October

FAN 126: Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times” (Oct. 5, 2016)

FAN 127: Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist” (Oct. 12, 2016)

FAN 128:  Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond (Oct. 19, 2016)

FAN 129: A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press (Oct. 26, 2016)

November 

FAN 130: “Porn Panic” Prompts Pushback (Nov. 2, 2016)

FAN 131: Forthcoming: Chemerinsky & Gillman on the importance of free speech on college (Nov. 10, 2016)

FAN 132: FIRE Launches First Amendment Online Library (Nov. 16, 2016)

FAN 133: Slants trademark case might be decided on statutory grounds (Nov. 23, 2016)

December

FAN 134:  “Anti-Semitism Awareness Act” ignites First Amendment controversy  (Dec. 7, 2016)

FAN 135: “Protect the Flag Act” Introduced in Congress” (Dec. 14, 2016)

→ Year in Review: FAN Posts for 2015 ←

 FAN 91: The Year in Review, including “the best of” (Dec. 30, 2015)

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FAN 135.1 (First Amendment News) First Amendment Salon: Jess Bravin Interviews ACLU’s David Cole

1a_salon_featured

The last First Amendment Salon has just been posted. It involved a dialogue between Jess Bravin (Supreme Court correspondent for the Wall Street Journal) and David Cole (Georgetown Law Professor and incoming National Legal Director of the ACLU).

The Salon, the eleventh, took place on December 8th at the law offices of Levine Sullivan Koch & Schulz in Washington,  D.C. and was video cast live to their offices in New York City.

The event was kindly filmed and audio recorded by the Foundation for Individual Rights in Education (FIRE), this in partnership with the Salons. The Salons also work in partnership with the Floyd Abrams Institute for Free Expression.

Thanks to the folks at FIRE, the Salons will now be available in podcast and video form and on various platforms:

  • David Cole & Jess Bravin Salon: podcast available here on FIRE’s So to Speak site.
  • David Cole & Jess Bravin Salon: podcast available here on iTunes
  • David Cole & Jess Bravin Salon: podcast available here on SoundCloud
  • David Cole & Jess Bravin Salon: podcast available here on Stitcher
  • David Cole & Jess Bravin Salon: video available here on First Amendment Library
  • David Cole & Jess Bravin Salon: video available here on YouTube
Anthony Dick raises a question

Anthony Dick raises a question regarding compelled expression

Complimentary beverages were kindly provided by Flying Dog Beer.

 

 

 

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FAN 135 (First Amendment News) “Protect the Flag Act” Introduced in Congress

On December 2, 2016, Congressman Michael R.  Turner (R-OH) introduced the “Protect the Flag Act” (H.R. 6433).  Section 2 of the proposed bill provides:

“(a) In General.—Federal funds may not be made available to an institution of higher education (as defined in section 102(a) of the Higher Education Act of 1965 (20 U.S.C. 1002(a))) that, pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution, removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.”

“(b) Reinstatement Of Eligibility.—The prohibition described in subsection (a) shall cease to apply with respect to an institution described in such subsection upon complete and proper reinstatement, by the institution in its official capacity, of the flag of the United States at any and all locations on campus property (including across multiple campuses, if applicable) from which a previously displayed flag of the United States was removed, censored, taken down, prohibited, or otherwise halted from display pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution.”

The summary caption for the Bill states: “To render ineligible for Federal funds any institution of higher education that removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.” Fifty-two other House Republicans have signed onto the measure.

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

According to a news story by Joseph Cohn wriitng for FIRE, the “bill was likely inspired by the recent controversy at Massachusetts’ Hampshire College in which the institution temporarily decided to stop flying the American flag. Hampshire’s decision came after their own American flag was stolen and burned amongst protests that the flag, a proud symbol to some, represented fear and exclusion to others. According to CNN, the school’s Board of Regents then decided to lower the flag to half-staff in order to ‘continue the campus discussion on the flag’s meaning,’ but some interpreted that decision as a protest of the election results. It was then that the college decided to not fly the flag at all, spurring harsh public criticism.”

See O’Reilly Factor video clip here (Watters’ World: Flag controversy edition).

According to a December 2, 2016 Boston Globe story, “Hampshire College, which prompted a firestorm by removing the Stars and Stripes three weeks ago, restored the banner to the campus on Friday as its president and students expressed hope that the controversy would inspire a forthright dialogue.”

Hampshire College President’s Comments

“We did not lower the flag to make a political statement,” Hampshire College President Jonathan Lash said. According to a news report in the Daily Wire, Lash added: “Nor did we intend to cause offense to veterans, military families or others for whom the flag represents service and sacrifice. We acted solely to facilitate much-needed dialogue on our campus about how to dismantle the bigotry that is prevalent in our society. We understand that many who hold the flag as a powerful symbol of national ideals and their highest aspirations for the country — including members of our own community — felt hurt by our decisions, and that we deeply regret.”

Congressman Michael Turner

Congressman Michael Turner

Congressman Turner’s Comments  

“I am proud to introduce legislation that will protect the American flag from censorship across the country,” Congressman Turner said in a statement to the Washington Examiner. “The American flag is a symbol of freedom throughout the world and should be respected as such. Recent action by Hampshire College to remove the American flag from its campus was a blatant act of censorship. Furthermore, Hampshire College’s decision disrespected our servicemembers, veterans, and the liberties our flag embodies. We must work to ensure that such acts of censorship are not supported by the government in the future.”

Though unlikely to pass this year owing to time constraints, the bill would be considered next year.

Headline: “Oklahoma To Require Anti-Abortion Signs In Public Restrooms”

Hayley Miller, writing in the Huffington Post, reports that “Oklahoma may require public restrooms in restaurants, hospitals, public schools, hotels and nursing homes to post signs with anti-abortion sentiments as part of a drive against the procedure.”

“The state’s board of health was due to discuss Tuesday regulations that would force any restrooms in buildings regulated by the Oklahoma Health Department to carry signs that state”:

There are many public and private agencies willing and able to help you carry your child to term and assist you and your child after your child is born, whether you choose to keep your child or to place him or her for adoption. The State of Oklahoma strongly urges you to contact them if you are pregnant.

State senator AJ Griffin

State senator A.J. Griffin

According to an Associated Press story, “the State Board of Health will consider regulations for the signs on Tuesday. Businesses and other organizations will have to pay an estimated $2.3 million to put up the signs because the Legislature didn’t approve any money for them. The provision for the signs was tucked into a law that the Legislature passed this year that requires the state to develop informational material “for the purpose of achieving an abortion-free society.” The signs must be posted by January 2018.”

“The anti-abortion group Oklahomans for Life requested the bill,” reports the St. Louis Post Dispatch. “The sponsor, Sen. A.J. Griffin, said she may revise the measure in the upcoming legislative session to more narrowly target it to exclude some facilities.”

“‘I do see how it is going to need to be tempered a tad,” said Griffin, a Republican from Guthrie. ‘We need to make sure we have something that’s reasonable and still effective.'”

[ht: David Horowitz]

Florida Abortion Law Challenged on First Amendment Grounds Read More

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FAN 134 (First Amendment News) “Anti-Semitism Awareness Act” ignites First Amendment controversy

The bill was proposed by Senators Bob Casey, a Pennsylvania Democrat, and Tim Scott, a South Carolina Republican, to “ensure the Education Department has the necessary statutory tools at their disposal to investigate anti-Jewish incidents,” according to a news release. The senators say the act is not meant to infringe on any individual right protected under the First Amendment, but rather to address a recent uptick in hate crimes against Jewish students. The bill is supported by the American Israel Public Affairs Committee, the Anti-Defamation League, the Jewish Federations of North America and the Simon Wiesenthal Center. . . . The bill has attracted criticism from groups including Palestine Legal and Jewish Voice for Peace, who say the proposed definition of anti-Semitism wrongly conflates any criticism of Israel with anti-Jewish sentiments. — Colleen Flaherty, Inside Higher Ed (Dec. 2, 2016)

* * * * 

View # 1: Opposition to the “Anti-Semitism Awareness Act”

Liz Jackson, a staff attorney for Palestine Legal in Oakland, recently published an op-ed in the Los Angeles Times. The piece was titled “The Anti-Semitism Awareness Act would damage free speech rights on campus.” Here are a few excerpts:

Liz Jackson

Liz Jackson

“[T]he U.S. Senate . . . pass[ed] a bill last week called the Anti-Semitism Awareness Act, which cracks down on the constitutional rights of college students and faculty to criticize Israel. The House will vote on it any day now.”

“The Anti-Semitism Awareness Act endorses the State Department definition of anti-Semitism, which includes ‘delegitimizing’ Israel, ‘demonizing’ Israel or holding Israel to a ‘double standard.’ The bill directs the Department of Education to consider this definition when investigating complaints of anti-Semitism on campus. But the bill does not add any new protections for Jewish students; the Civil Rights Act of 1964, and the Department of Education’s interpretation of the statute, already protects Jewish students against discrimination.”

“The State Department standard is highly controversial because it conflates criticism of Israeli policies with anti-Jewish hatred, shutting down debate by suggesting that anyone who looks critically at Israeli policy is somehow beyond the pale. It has no place on college campuses in particular, where we need students to engage in a vigorous exchange of ideas — especially around our world’s most intractable problems, such as Israel’s nearly 50-year military occupation of Palestine.”

“The University of California rejected the same definition in 2015 after an outcry from free-speech advocates across the political spectrum, newspapers, students, graduate student instructors, and Jewish and other civil rights organizationsJewish commentators, including the definition’s original drafter, Kenneth Stern, repudiated its use on college campuses.”

“As a Jewish student at Berkeley Law in 2010, I joined the campaign pushing the university to divest from companies complicit in Israel’s occupation and violations of Palestinian rights. I was shocked when Israel advocacy organizations claimed that our support for Palestinian equality was so distressing for some Jewish students that the university should not even let us debate the issue. . . .”

View # 2: In Defense of the “Anti-Semitism Awareness Act”

This from a press release from the Anti-Defamation League:

“The Anti-Defamation League (ADL) today hailed Senate passage of the Anti-Semitism Awareness Act, legislation which provides important guidance for the Department of Education and the Department of Justice for federal anti-discrimination investigations involving anti-Semitism, including on campus.”

unknown“The act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful discriminatory conduct?”

“ADL played a central role in working with U.S. Senators Tim Scott (R-SC) and Bob Casey (D-PA) in crafting and promoting the legislation. The League also urged the House of Representatives to approve the legislation before adjournment later this month.”

“‘We welcome Senate passage of this important legislation, which will help the Department of Education and Department of Justice to effectively determine whether an investigation of an incident of anti-Semitism is warranted under federal education anti-discrimination laws,” said Jonathan A. Greenblatt, ADL CEO. “This act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful, discriminatory conduct.'”

“. . . . This legislation uses a 2010 definition of anti-Semitism developed by the State Department’s Special Envoy to Monitor and Combat Anti-Semitism as a reference point that can be useful in their cases, including select instances when discriminatory anti-Semitic conduct may be couched as anti-Israel or anti-Zionist.  The legislation instructs the Department of Education to draw on this definition as part of its assessment of whether incidents are motivated by anti-Semitism when investigating possible violations of Title VI of the Civil Rights Act of 1964 based on individuals’ Jewish heritage or ethnicity. The legislation takes great pains to protect freedom of expression.”

“‘To effectively address reported anti-Jewish incidents that may violate federal education anti-discrimination laws, it is necessary to understand the evolving, current manifestations of anti-Semitism,” Mr. Greenblatt said. “The State Department definition includes useful illustrative examples and can be an important resource.  However, it is also vital to accurately distinguish protected speech – including disagreement and even harsh criticism of the government of Israel – from harassing, intimidating, and discriminatory anti-Semitism.'” . . . .

Related Articles

Josh Nathan-Kazis, Expert on Hate Opposes Campus Anti-Semitism Bill — Based on Definition He Created, Forward, Dec. 6, 2016 (“‘If this bill is passed, its proponents will have the ability to threaten federal funding at colleges and universities where political speech against Israel occurs, and where administrators then don’t try to stop it, or fail to put the university on record calling such speech anti-Semitic,’ Stern wrote. ‘Think of the precedent this would set.'”)

Lea Speyer, Responding to Backlash, Co-Sponsor of House Antisemitism Act Insists Legislation Will Not ‘Diminish, Infringe on’ First Amendment Rights, The Algemeiner, Dec. 6, 2016

Headline: “Purdue’s free-speech orientation program could go national”

Writing in The College Fix, Greg Piper reports that “Indiana’s Purdue University is making a strong play for best public university in the country, based on its demonstrated commitment to free speech.”

unknown“And now it’s getting interest in taking that approach to other schools, whose leaders may be tiring of giving in to student demands to censor and punish students, faculty and staff for their speech and nonthreatening behaviors.”

“The university has been approached by NASPA (Student Affairs Administrators in Higher Education) to present the “methodology” for its “free speech orientation program” – the first of its kind in the nation – at an upcoming conference, Director of Student Success Programs Dan Carpenter told the Foundation for Individual Rights in Education. . . .”

Related: David Schutte, Law School holds First Amendment rights event, The Cavalier Daily, Dec. 2016

White nationalist’s speech draws protests at Texas A&M University

Richard Spencer

Richard Spencer

Reuters reporter Lisa Maria Garza reports that “Texas A&M University students and activists protested against a speech on Tuesday by white nationalist Richard Spencer, who was filmed at a conference last month saying “Hail Trump”, drawing Nazi-like salutes from some spectators.”

“About 1,000 demonstrators waved flags, marched, sang songs and shouted through loudspeakers outside the Memorial Student Center on the campus, where Spencer was speaking, as state police in riot gear stood by, blocking them from entering.”

“Caitlin Miles, a 26-year-old graduate student, stood on top of a box and yelled over the sound of tambourines and trumpets, telling her fellow demonstrators not to engage with any Spencer supporters.”

“‘He has made a lot of remarks and promoted chants that hail back to Nazi slogans. This is a campus that sacrificed nearly half of its student body to fight Nazis,’ Miles told Reuters. . . .”

“The university in College Station, Texas, said its leaders explored whether it could legally prohibit Spencer’s event, but ultimately recognized its obligation to uphold free speech, university spokeswoman Amy Smith said. . . .”

Trump & the Flap over the Flag

screen-shot-2016-12-05-at-11-42-18-pm

Justice Antonin Scalia – Flag Burning Is Free Speech (2012 interview with CNN)

Robert Corn-Revere on Flag Desecration and Free Speech, Closeup, Newseum (02-28-08) (begins at 13:20 into discussion)

Robert Corn-Revere, Implementing a Flag-Desecration Amendment to the U.S. Constitution, First Amendment Center First Report (07.01.05)

  1. Kathleen Parker, Trump seems ready to burn down First Amendment, The Register-Guard, Dec. 6, 2016
  2. Kirsten Salyer, Burning Flags, Screaming ‘Trump’ and Our First Amendment, Time, Dec. 5, 2016
  3. Editorial, So now Trump is “endangering” the First Amendment, Hot Air, Dec. 5, 2016
  4. Erik Wemple, Pray for the First Amendment. Now., Washington Post, Dec. 4, 2016
  5. Scott Bomboy, Flag burning and the First Amendment: Yet another look at the two, Constitution Daily, Nov. 30, 2016
  6. Andrew Napolitano, Trump ‘offended’ the first amendment !!, Fox news, Nov. 30, 2016
  7. Alan Dershowitz, The First Amendment is not broken so let’s not try to fix it, Fox News, Nov. 30, 2016
  8. Mark Hensch, GOP rep: ‘No president is allowed to burn the First Amendment’, The Hill, Nov. 29, 2016
  9. Mark Hensch, House GOP leader on flag burning: ‘We’ll protect our First Amendment’, The Hill, Nov. 29, 2016
  10. Philip Bump, Donald Trump v. the First Amendment, Part 5, Washington Post, Nov. 29, 2016
  11. Max Kutner, Before Donald Trump Called for Flag-Burning Jail Time, Hillary Did, Newsweek, Nov. 29, 2016
  12. Ken Paulson, Trump tweet set Constitution ablaze, USA Today, Nov. 29, 2016

Justice Alito: Remarks at Federalist Society Conference Read More

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FAN 133.1 (First Amendment News) FIRE to podcast First Amendment Salons

Lee Levine

Lee Levine

The Foundation for Individual Rights (FIRE) will podcast future First Amendment Salons, the next of which is scheduled for December 8th in Washington, D.C. That salon, the eleventh, will feature a discussion between David Cole (the new national legal director of the ACLU) and Jess Bravin (the Supreme Court correspondent for the  Wall Street Journal).

Henceforth, a podcast of the Salons will be available on FIRE’s So to Speak: The Free Speech Podcast station hosted by Nico Perrino.  A video of the Salons will also be available on FIRE’s First Amendment Online library.

Lee Levine, one of the Salon’s co-chairs, stated: “The First Amendment Salon has quickly developed a well deserved reputation as the leading forum for spirited and frank discussion about the role of the freedom of expression in contemporary society.  Now, more than ever, we believe it is vital to bring those discussions to as wide an audience as possible and we are delighted to be working with FIRE to make that happen.”

screen-shot-2016-12-02-at-11-34-44-am

Nico Perrino

Nico Perrino

“The First Amendment Salon has become an important platform for bringing together the most prominent figures in the First Amendment community to regularly discuss hot-button free speech issues,” said Perrino, FIRE’s director of communications. “We are thrilled to partner with the Salon’s organizers to share these essential conversations with a wider audience on So to Speak.”

* * * *

The salons, which began in April 2014, engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion of key free speech issues of our day. Each by-invitation only program involves a 90-minute discussion concerning a timely topic related to freedom of expression, whether in a contemporary Supreme Court case, book, article, legal brief, or memorandum.

In September 2014, the Salons formed an association with the Floyd Abrams Institute for Freedom of Expression at the Yale Law School.  And in August 2015, the Salon first went “on the road,” beginning with an event in Los Angeles and thereafter one in Chicago.  The last salon involved a discussion between Professor Geoffrey Stone and Judge Richard Posner (YouTube video here).

This past October the First Amendment Salon launched its first in the “More Speech” series of Occasional Papers” to be circulated by the salon and the Floyd Abrams Institute. The purpose of these “More Speech papers is to introduce the practicing First Amendment bar to some new and important scholarly work that might be useful in litigation. Thus, the Salon will invite a noted First Amendment lawyer to write a foreword to a particular scholarly article. By the same token, from time to time it will invite a noted First Amendment scholar to write a foreword to some important appellate brief, which we think might be of interest to the academic community. In this way, among others, the Salon hopes to enhance the communication between the practicing bar and the legal academy (and among journalists and activists, too).

The next Salon will be on April 5, 2017 at the Floyd Abrams Institute at Yale Law School. Adam Liptak (Supreme Court correspondent for the New York Times) will interview Mr. Abrams in connection with his latest book, The Soul of the First Amendment (Yale University Press, 2017).

Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Sandra Baron, Floyd Abrams Institute for Freedom of Expression
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
1

A Posner Cerebral Sampler for the Holidays

stock-photo-a-dusting-of-snow-on-pine-boughs-pine-cones-and-red-berries-creates-a-seasonal-bouquet-with-a-167943707What the holidays coming up, I thought some might like to have a Posner sampler of cerebral treats to savor at home, or at work, or as source of discussion at one of those otherwise dreadfully boring holiday parties. For example, after one or two martinis you might lean over to a friend and ask:

  • So, what do you think of the new Posner biography?

Or if you prefer downing Flying Dog brew, you might liven things up a bit by asking:

  • Has anyone seen the video of the First Amendment Salon that Posner did with Geof Stone? And what of the Judge’s views on Dennis v. United States

Or if you have friends over to the house, try gathering around a cracking fire and perking up the conversation with something like:

  • I gather Posner has some serious reservations about the Roberts Court — or is that putting it to kindly?

Then again, you might just want to snuggle up in bed and ponder the latest Posner book, or article, or judicial opinion. Or what about this? — take a Posner book to a high-end hotel bar and wait until some attractive person comes up and starts a conversation with you about that “Posner book you’re reading.” (Yes, it actually happened, and I did not have to wait long.)

So whatever your stripes — liberal, conservative, libertarian, Trumpian, anarchist, nihilist, atheist, etc. — here is a seasonal sampler for you, a little taste of Posner — Richard Posner, that is.

New & Forthcoming

Judge Posner is writing a new book; it is titled Strengths and Weaknesses of the Legal System (Harvard University Press, summer 2017).

→ What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part II, The Greenbag (2016) (Part 1 here) Reply: William Baude & Stephen E. Sachs, Originalism’s Bite, Green Bag 2d (forthcoming  20, #1, 2016)

Richard Posner & Eric Segall, Faux OriginalismThe Greenbag (forthcoming vol. 20, #1, 2016) (reply to Baude & Sachs, above)

imagesNew Opinions 

Illinois Transportation Trade Association v. City of Chicago (7th Cir., 2016) (Posner on Uber vs. taxis)

Culp v. Madigan (7th Cir., Oct. 20, 2016) (“So the Illinois law regulating the concealed-carry rights of nonresidents is imperfect. But we cannot say that it is un- reasonable, so imperfect as to justify the issuance of a preliminary injunction.  . .  . The critical problem presented by the plaintiffs’ demand—for which they offer no solution—is verification. A nonresident’s application for an Illinois concealed-carry license can- not be taken at face value. The assertions in it must be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law. A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction.”)

Somewhat new but “enticing”: Backpage.com v. Dart (Nov. 2015) (“Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix (According To One Dominatrix), www.xojane.com/sex/what-its-actually-like-being-a-dominatrix-according-to-one-dominatrix (visited November 27, 2015) (‘I make a living as a professional dominatrix. . . . I make a living by hitting, humiliating, dressing up, verbally attacking and otherwise fulfilling men’s weird fantasies about being dominated.”); see also Wikipedia, ‘Dominatrix,’ https://en.wikipedia.org/wiki/Dominatrix (visited the same day). It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.’)

Salon Video: Posner on Free Speech 

Judge Richard Posner & Professor Geoffrey Stone)

Judge Richard Posner & Professor Geoffrey Stone

On May 16, 2016, The First Amendment Salon went on the road again, this time to the University of Chicago Law School. Geoffrey Stone (who serves on the Salon’s advisory board) interviewed Judge Richard Posner. The topic: “The Centrality of the First Amendment.” (Link to video below)

By all measures, it was a quite an evening as Stone engaged the dapper jurist, drawing him out time and again. The result: a rare display of candor on a variety of subjects ranging from the significance of the press clause to the display of confederate flags.

Speaking in measured tones sprinkled with occasional chuckles, Posner seldom held back as the turn of his mind ventured from one provocative thought to another. Stone asked him about everything from the Dennis v. U.S. ruling (RP: correctly decided), to the Pentagon Papers Case (RP: correctly decided), to the wisdom of extending First Amendment protection to Edward Snowden re the release of secret government documents (RP: not much simpatico here).

Along the dialogic way Posner, ever the maverick, occasionally answered Stone’s questions with a question only to have the Chicago professor up the conversational ante to tease out this or that point.

When the time came for questions from the audiences in New York and Washington, D.C. (via teleconferencing), the tenor remained composed yet spirited as the Judge replied with singular frankness concerning topics such as

Sometimes the discussion veered onto other topics such as:

  • executive power in wartime (RP: should be considerable with little or no interference from the courts)
  • the Second Amendment and the individual right to bear arms (RP: critical)

Among other things, Posner also leveled a hearty blow at Roger Taney, this for his 1861 opinion in Ex ParteMerryman in which the Chief Justice took constitutional exception to President Lincoln’s suspension of the writ of habeas corpus. Pure folly by Posner’s jurisprudential measure.

All in all, everyone remained relaxed even as eyebrows raised. It made for a memorable evening. There was, of course more, much more. But I’ll stop there for now, if only because the video is far better.

Video here

unknown9-199x300 The “Provocative” Posner

That is the word used in the New York Times book review of the new biography of Judge Posner by William Domnarski. Here is how John Fabian Witt opened his review: “Once in every great while, nature and nurture combine in a single person the qualities of erratic genius, herculean work ethic and irrepressible ambition. Think of Picasso in art, Ali in boxing or Roth in literature. Add a penchant for provocation untethered to the constraints of conventional human interaction and you get, in the law, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.”

See David Lat, Interview with William Domnarski, Above the Law, August 25, 2016

Ronald Collins, The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions, December 29, 2015

Posner: “I think the Supreme Court is awful. I think it’s reached a real nadir.”

If you want to read more about why Judge Posner said that, check out his Seminary Co-op Bookstore discussion with Mr. Domnarski and Professor Tom Ginsburg.

Prof. Ginsburg,Judge Posner & Mr. Domnarski

Prof. Ginsburg, Judge Posner & Mr. Domnarski

In a subsequent comment to David Lat over at Above the Law, Judge Posner declared: “I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.”

Posner on Professors (& Professors on Posner) 

 Divergent Paths: The Academy and the Judiciary (Harvard University Press, 2015)

→ Jeff Berkowitz, Video Interview with Judge Posner, Public Affairs, June 1, 2016 (discussing, among other things, Posner’s Divergent Paths) (also: video of Posner’s chambers) (Part 2 here)

University of Chicago Law School: Symposium on Richard Posner’s Divergent Paths: The Academy and the Judiciary, May 3, 2016

Posner on The Blue Book

images Debra Cassens Weiss, Posner says Bluebook is ‘560 pages of rubbish,’ suggests changes to improve jury trials, American Bar Association Journal, March 29, 2016 (“Posner also dislikes The Bluebook. He has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.’The first thing to do,’ Posner writes, ‘is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.'”)

  • David Ziff, The Worst System of Citation Except for All the Others, Journal of Legal Education (forthcoming 2016) (“Even The Bluebook’s harshest critics, such as Judge Richard Posner, rely on The Bluebook’s system of rules much more than they like to admit. . . . Judge Posner . . .  has suggested that ‘[a] week after all the copies of the Bluebook were burned, their absence would not be noticed.’ Provocative. But let’s play the hypothetical forward. To the extent lawyers, judges, students, and academics in a post-Bluebook world endeavored to communicate their references in a reasonable and clear manner, The Bluebook would still exert its influence, because efficient communication requires a baseline of shared understanding among writers and readers. Of course, that shared understanding could be based on a system of rules other than The Bluebook. But some baseline is necessary.”)

Finale: The Complete Posner on Posner

posner-720x340

 Ronald Collins, The Complete Posner on Posner Series, Concurring Opinions, Nov. 24, 2015 – Jan. 5, 2015 (12 posts)

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FAN 133 (First Amendment News) Slants trademark case might be decided on statutory grounds

The Slants band

The Slants band

The briefs are still being filed in Lee v. Tamthe disparagement trademark case. While the briefs for the Petitioner are in

those for the Respondent have yet to be submitted.

John C. Connell

John C. Connell

No doubt, First Amendment arguments will demand a lion’s share of attention in those briefs. But will the Court ultimately go that far in deciding the case, or might it take refuge in the doctrine of constitutional avoidance and decide the controversial case on statutory grounds?

→ Enter John C. Connell, counsel of record for the Respondent (with him on the brief: Stuart Banner, Eugene Volokh, Ronald Coleman & Joel MacMull). In his brief, Mr. Connell devotes considerable attention to the following argument: “The Lanham Act’s disparagement clause does not bar the registration of respondent’s trademark.” Here are some excerpts from the Respondent’s brief related to this issue:

  1. Statutory Claim Preserved: “Under section 2(a) of the Lanham Act, does THE SLANTS ‘disparage  . . . persons, living or dead’? At every stage of this litigation, Simon Tam has argued that section 2(a) does not bar the registration of his trademark. He is thus entitled to defend the judgment below on this ground.”
  2. Pressing Need to Decided Statutory Issue: “Section 2(a)’s disparagement clause has existed for 70 years, but the Court has never interpreted it. The PTO has been left to develop its own disparagement jurisprudence, which has wandered ever farther from the statute’s text and from any reasonable understanding of what Congress intended. This case provides an opportunity for the Court to guide the PTO back to the text of the statute.
  3. No Statutory Disparagement: “Simon Tam and his band members are not disparaging Asian- Americans. They are doing precisely the opposite; they are appropriating a slur and using it as a badge of pride. Simon Tam is not a bigot; he is fighting big- otry with the time-honored technique of seizing the bigots’ own language. “Slant” can certainly be used in a disparaging way, but Tam is not using it that way. Even the most cursory awareness of the Slants’ music and the way it is packaged makes that clear.”
  4. PTO Misapplied Statutory Test: “Rather than considering the full context surrounding Simon Tam’s use of THE SLANTS, the PTO simply looked up the word ‘slant in several dictionaries. Rather than asking whether THE SLANTS disparages Asian-Americans generally, the PTO quoted the views of a blogger and a few self-styled spokespeople for Asian-Americans, to conclude that ‘a substantial composite of the referenced group find the term objectionable.’ Had the PTO followed the statute . . . the result would have been different.”
  5. Statute does not apply to “Collective Entities”: “The PTO also erred in construing section 2(a)’s bar on the registration of marks that may disparage ‘persons, living or dead’ to include marks that disparage non-juristic collective entities like racial and ethnic groups. In fact, the quoted phrase includes only natural and juristic persons. . . . Section 2(a)’s disparagement clause bars the registration of marks—such as JOHN SMITH IS EVIL—that disparage natural persons. It also bars the registration of marks—such as MICROSOFT IS EVIL—that disparage juristic persons. But the disparagement clause explicitly does not bar the registration of marks that disparage collective entities that are not juristic persons.”
  6. Original Purpose of Disparagement Clause: “The purpose of the disparagement clause was not to protect the civil rights of racial and ethnic minorities. Rather, the purpose appears to have been to bring American trademark law into conformity with the language of a recent treaty. In 1931, the United States ratified the Inter-American Convention for Trade Mark and Commercial Protection. 46 Stat. 2907 (1931). Article 3.4 of the Convention provided for the denial of registration to trademarks ‘[w]hich tend to expose persons, institutions, beliefs, national symbols or those of associations of public interest, to ridicule or contempt.’ One of the primary purposes of the Lanham Act was, as the House and Senate re- ports both explained, ‘[t]o carry out by statute our international commitments.’ Indeed, the full title of the Lanham Act was ‘An Act to provide for the registration and protection of trade-marks used in commerce, to carry out the provisions of certain international conventions, and for other purposes.’ . . .  Congress would not turn its attention to protect- ing the rights of racial and ethnic minorities for many years to come. When it did, beginning with the Civil Rights Act of 1957, Congress would refer to race and ethnicity explicitly, unlike in the Lanham Act. Section 2(a) thus protects natural and juristic persons against disparagement; it does not protect racial and ethnic groups.”

Such arguments may carry the day and thus could prevent the Court from reaching the First Amendment issues. Let’s see how oral arguments play out.

* * * *

Here are the Briefs in support of neither party:

See also Erica Goldberg, Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series): Part One: The Weighty Legal QuestionsIn a Crowded Theater, Oct. 24, 2016

True Threats to Press Freedom?

 Emily Bazelon, Billionaires vs. the Press in the Era of Trump, New York Times, Nov. 22, 2016 (“Once installed in the White House, Trump will have a wider array of tools at his disposal, and his record suggests that, more than his predecessors, he will try to use the press — and also control and subdue it.”)

Brent Griffiths, Trump to reporters: ‘You’ll be happy’ with my views on the First Amendment, Politico, Nov. 22, 2016 (“President-elect Donald Trump vowed that reporters would be ‘happy’ with his stewardship of the First Amendment under his presidency, despite past promises to make it easier to sue them. ‘I think you’ll be happy, I think you’ll be happy,’ Trump told New York Times reporters, editors and columnists gathered at the newspaper’s Times Square headquarters on Tuesday.”)

unknown Joe Concha, Breitbart News planning lawsuit against ‘major media company,’ The Hill, Nov. 15, 2016 (“Breitbart News Network, a pro-America, conservative website, is preparing a multi-million dollar lawsuit against a major media company for its baseless and defamatory claim that Breitbart News is a ‘white nationalist website,’” the statement reads.”Breitbart News cannot allow such vicious racial lies to go unchallenged, especially by cynical, politically-motivated competitors seeking to diminish its 42 million monthly readers and its number one in the world political Facebook page. Breitbart News rejects racism in all its varied and ugly forms. Always has, always will,” the statement continues.)

Peter Scheer, Can the First Amendment survive President Donald Trump?, Cal Coastal News, November 21, 2016 (“To get back at the New York Times, the Trump administration can go after its biggest shareholder, Mexican telecom magnate Carlos Slim. To get back at CNN, the Trump administration can have antitrust regulators in the Justice Department and FTC put the brakes on the proposed merger of Time-Warner (CNN’s owner) and AT&T.  And the same pain can be visited upon scores of other US firms, not limited to media, which, having criticized Trump’s policies, find themselves in the government’s crosshairs.”)

Susan Seager, Melania Trump’s ‘Revenge Lawyer’ Apparently Doesn’t Understand First Amendment, Law Newz, Nov. 19, 2016 (“Charles Harder, the Beverly Hills lawyer who destroyed Gawker as an act of revenge bankrolled by Silicon Valley mogul Peter Thiel and is now the attack-dog-lawyer for Melania Trump, wants to take down mainstream reporters and a 52-year-old Supreme Court decision. Problem is, like many tough-talking celeb lawyers, Harder misunderstands the law.”)

Ashly Cullins, Trump’s First-Amendment Nemesis Explains How He’ll Defend Any Defamation Lawsuits (Q&A), The Hollywood Reporter, Nov. 17, 2016  (“After then-candidate, now President-elect Donald Trump threatened to sue The New York Times and his sexual assault accusers for defamation in October, attorney Ted Boutrous turned to Twitter to tell the paper, and anyone else finding themselves in a similar situation, that he’d take on any free speech case brought by Trump, pro-bono. . .”

Question: What are some of the weapons that might be used against the press?

Boutrous’ Reply: “Subpoenas to reporters, going after whistleblowers, having an administration that’s even worse at responding to Freedom of Information Act requests, denying press credentials to news organizations, seeking prior restraints to stop publication of newsworthy information, and continuing to attack journalism and undermine its legitimacy from the bully pulpit of the presidency. We need vigorous, aggressive journalism as a democracy. The framers of the Constitution knew that people need to have accurate, factual information. If you have the president telling people that the best journalism in the world is wrong and evil, that is very harmful.”

Steve Benen, First Amendment faces unusual threats following Trump’s win, MSNBC, Nov. 14, 2016 (” One of the president-elect’s top aides raised the prospect of legal action against a critical senator; the president-elect himself is dishonestly attacking one of the nation’s top news outlets; Trump’s team is already taking new steps to limit press access; and the incoming Republican administration has taken aim at protesters voicing dissent in the wake of last week’s elections. If this is what we’re seeing in the first week – two months before Trump officially takes power – the First Amendment and its proponents are in for a very rough ride.”)

Mirren Gidda & Zach Schonfeld, Donald Trump’s Threat to Press Freedom: Why It Matters, Newsweek, Nov 12, 2016 (“Less than a month before the U.S. presidential election, the Committee to Protect Journalists issued an unprecedented statement denouncing the then-Republican nominee. ‘[Donald] Trump has insulted and vilified the press and has made his opposition to the media a centerpiece of his campaign,’ said the committee, a New York-based organization that promotes press freedom. ‘A Trump presidency would represent a threat to press freedom in the United States.’ With little more than two months before Trump takes the oath of office, the threat to the media—and the public’s right to know—is reality.”)

John Daniel Davidson, Mainstream Journalists Don’t Care About Free Speech Until Donald Trump Attacks It, The Federalist, Nov. 15, 2016 (“Trump’s cavalier attitude toward free speech isn’t unique. In fact, it’s a fundamental feature of the political Left. For all its wailing about free speech in the wake of Trump’s election . . . , the media spent eight years enabling and at times encouraging the Obama administration’s denigration of the First Amendment.”)

Hanging noose in yard unprotected by First Amendment Read More