Category: First Amendment


FAN 172 (First Amendment News) Books Issue — 15 New or Forthcoming Titles

Prof. Jerome Barron

It began nearly a quarter-century ago with the publication of First Amendment Law in a Nutshell. Now, that treasure trove of information appears yet again in “nutshell” form, this in its fifth edition. Compact in size, accessible in style, reliable in substance, and current up to Matal v. Tam (2017), this jem of a book is an indispensable resource for anyone interested in the First Amendment’s five freedoms.

Sadly, Jerome Barron’s friend and co-author Thomas Dienes died in 2013. “I did not have the joy the joy of working with him in this edition,” wrote Barron, “as I did in the first four editions of this book. I miss the benefit of his knowledge, insight and friendhip but I am grateful for the many years in which we worked on this and other books.”

Abstract: This book provides a short and readable source for individuals interested in constitutional law, First Amendment law, and communications law. It is divided into four parts: the history, methodology, and philosophical foundations of the First Amendment; topics such as First Amendment issues that arise in cable television and in regulating children’s access to the Internet; issues in First Amendment law such as the public forum doctrine, the compelled speech doctrine, and the free expression rights of government employees; and the text, history, and theory of the religion clauses, chronicling the ongoing battle in the Supreme Court between accommodationists and separationists. The Fifth Edition brings the book up to date with modern First Amendment jurisprudence, including a focus on racist and offensive speech, electoral spending, and other topics covered by recent Supreme Court cases and discussions.

Jerome Barron & C. Thomas Dienes, First Amendment Law in a Nutshell (West Academic Publishing, 5th ed., November 20, 2017)

Brand New: Fellion & Inglis on Literary Censorship

→ Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control (The British Library Publishing Division, September 28, 2017)

Brand New: Fronc on Movie Censorship

Jennifer Fronc, Monitoring the Movies: The Fight over Film Censorship in Early Twentieth-Century Urban America (University of Texas Press, November 15, 2017)

Brand New: More on Film Censorship

 Jememy Geltzer, Film Censorship in America: A State-by-State History (McFarland, November 3, 2017)

Brand New: Free Speech & Hollywood (1907-1927)

→ Jay Douglas Steinmetz, Beyond Free Speech and Propaganda: The Political Development of Hollywood, 1907–1927 (Lexington Books, November 24, 2017)

Coming this January: Easton on the Lawyer for The Masses

→ Eric B. Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech (University of Wisconsin Press, January 9, 2018)

Coming this January: New Life for the Press Clause?
Read More


FAN 171.1 (First Amendment News) Met Refuses to Remove 1938 “Offensive” Painting — Free Speech Advocates Rally to Museum’s Defense

Throughout his career, Balthus rejected the usual conventions of the art world. . . Prime Ministers and rock stars alike attended the funeral of Balthus. Bono, lead-singer of U2, sang for the hundreds of mourners at the funeral, including the President of France . . . and others.  Elisa 47

Moral panics often inspire demands for censorship and this is no exception. The MET absolutely made the right decision.  Robert Corn-Revere

* * * * 

Thérèse Dreaming (Metropolitan Museum of Art)

Censorship is never a safe haven for art, be it paintings, photos, poems, films, or music. Could art, as we know it in our constitutional government, exist if it could not be offensive at times? After all, safe, sanitary, and uncontroversal art is never in need of First Amendment protection. The 1791 guaranty is there to protect art that sometimes offends, that sometimes angers, and that sometimes even trades in taboo. Or so goes the creed of the defenders of free expression who came to the defense of The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts “the sexualization of a child.” That painitng is Thérèse Dreaming, a 1938 work by Balthus.

Here is how the Met describes it: “With closed eyes, Balthus’s pubescent model is lost in thought. Thérèse Blanchard, who was about twelve or thirteen at the time this picture was made, and her brother Hubert were neighbors of Balthus in Paris. She appears alone, with her cat, or with her brother in a series of eleven paintings done between 1936 and 1939.”

Others see it differently.  As reported by Natalie O’Neill in a story in the New York Post: “‘The artist of this painting, Balthus, had a noted infatuation with pubescent girls and this painting is undeniably romanticizing the sexualization of a child,’ writes Mia Merrill, 30, a New York City entrepreneur who started the petition. ‘Given the current climate around sexual assault … The Met is romanticizing voyeurism and the objectification of children.'”

→ See petititon: “Metropolitan Museum of Art: Remove Balthus’ Suggestive Painting of a Pubescent Girl, Thérèse Dreaming” (10,995 supporters). Here are a few excerpts from that petition:

  • “When I went to the Metropolitan Museum of Art this past weekend, I was shocked to see a painting that depicts a young girl in a sexually suggestive pose. Balthus’ painting, Thérèse Dreaming, is an evocative portrait of a prepubescent girl relaxing on a chair with her legs up and underwear exposed.”

(From online petition)

  • It is disturbing that the Met would proudly display such an image. . .  The artist of this painting, Balthus, had a noted infatuation with pubescent girls, and it can be strongly argued that this painting romanticizes the sexualization of a child.”

Removal or Trigger Warning Urged

  • “I am not asking for this painting to be censored, destroyed or never seen again. I am asking The Met to seriously consider the implications of hanging particular pieces of art on their walls, and to be more conscientious in how they contextualize those pieces to the masses. This can be accomplished by either removing the piece from that particular gallery, or providing more context in the painting’s description. For example, a line as brief as, ‘some viewers find this piece offensive or disturbing, given Balthus’ artistic infatuation with young girls.‘”

Ms. Mia Merrill

 Mia Merrill Twitter message: “I put together a petition asking the Met to take down a piece of art that is undeniably romanticizing the sexualization of a child. If you are a part of the movement or ever think about the implications of art on life, please support this effort.”

Met Responds

As reported in the Post, Kenneth Weine, spokesman for the Met, stated:“[Our] mission is to collect, study, conserve, and present significant works of art across all times and cultures in order to connect people to creativity, knowledge, and ideas.  Moments such as this provide an opportunity for conversation, and visual art is one of the most significant means we have for reflecting on both the past and the present.”

Free-Speech Advocates Defend Met

  • “The National Coalition Against Censorship (NCAC) strongly supports The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts ‘the sexualization of a child.’ . . . The protesters’ claim that displaying the painting implies institutional approval of an unhealthy sexualization of young women . . . fundamentally misconstrues the role of cultural institutions, which is to facilitate a diverse public’s engagement with a rich array of cultures and objects by framing and contextualizing them. . . . NCAC applauds The Met’s refusal to bow to its critics. We will continue to support cultural institutions that allow members of the public to make up their own minds about what is ‘offensive.'”

“Great museums don’t need to be lectured about the supposedly baleful impact of their exhibitions; in each generation, they need to be protected from well-meaning but art-threatening ning censors who seek to substitute their notions of morality for artistic judgments about what to paint and what to display.” — Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel

— “Especially in light of the Museum’s advance notice to potential viewers that “Some of the paintings in this exhibition may be disturbing to some visitors,” it would be inappropriate for the Museum to deprive all visitors of the opportunity to view the work and to discuss the issues it illuminates. This is particularly true during this “Me Too” moment, given the important public focus on pertinent issues, including Roy Moore’s sexual pursuit of young females.” — Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School

 “The Metropolitan Museum of Art has been forced to respond to would-be censors since the 1880s. The claim of harm to children was always the easiest to make. During the era in which Comstock Laws were enforced most broadly, reproductions of nudes exhibited at the Met were deemed obscene, burned and destroyed, while the originals were held to be art, and therefore not subject to suppression. Claims were made by Comstock and his employers about the ways in which the particular effects of originals ameliorated their ‘bad tendencies’ but in reality this responded to the political problems raised by questioning the morals of wealthy donors. Bravo, Met, once again.” — Amy Werbel, Associate Professor, Fashion Institute of Technology, State University of New York and author of Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (forthcoming 2018)

Woodhull Freedom Foundation does not support censorship in any form, especially when it comes to works of art that raise troubling themes. We do support high standards for interpretive materials and believe that at their best they should reflect the most current understanding or knowledge about an artist, issue, historical era, or work of art. While coverage of this petition has focused on the call to remove the work, we do note that the author of the petition offers a choice, where providing better interpretive material would facilitate the display of the work in question.”  — Elizabeth Wood, Senior Strategist, Woodhull Freedom Foundation


FAN 171 (First Amendment News) Masterpiece Cakeshop Case: Oral Argument Summary & Resources’ Roundup

The tone and nature of Kennedy’s questions suggest that he is inclined to rule for the baker. But his ruling would effectively still be a win for gay rights laws. Kennedy can hold that CADA itself — like hundreds of other civil rights protections — remains completely valid. But this particular proceeding, he might conclude, was infected by anti-religious bias.– Craig Konnoth, Wash. Post, Dec. 6, 2017

It appears there will be a closely divided court, and the majority will try to craft a narrow compromise between equal dignity and religious belief., — Roberta Kaplan, The Advocate, Dec. 6, 2017 


The information below consists of a topically organized set of excerpts from oral arguments in the Masterpiece cake case that was argued in the Suprme Court yesterday. Following that is a roundroup of recent articles.  

David Mullins & Charlie Craig (Washington Blade photo by Michael Key)


  • Counsel for Petitioners: Kristen K. Waggoner
  • Counself for Amicus, supporting the Petitioners: Noel J. Francisco, Solicitor General, Dept. of Justice
  • Counsel for Private Respondents: David Cole, National ACLU
  • Counself for State Respondent: Frederick R. Yarger, Solicitor General, Denver, Colorado

Petitioner Jack Phillips (credit: Slate)

Excerpts from Oral Arguments 

Note: In the name of breveity, the excerpts that follow often leave out replies to the questions asked.

Premade Cakes 

Ginsburg: “What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?” (Trans.: pp. 4-5)

Kennedy: “[I]f you agree that it’s speech, then why can he not refuse to sell the cake that’s in the window according to Justice Ginsburg’s hypothetical?” (Trans.: p. 5)

Waggoner: “Well, in the context of if it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed. . . .” (Trans.: p. 6)

Kennedy: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake?”  (Trans.: p. 8)

Kristen K. Waggoner for Petitioners

Roberts: “There’s no -­there’s no compulsion of speech, but if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected.” (Trans. p. 9)

Kagan: “[A] couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it. Can he then say no? No cake?” (Trans. p. 38)

Sotomayor: “Let’s assume this couple did come in and wanted the rainbow cake. . . . And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding. . . . So what are the difference in treatment?”  (Trans. p. 61)

Yarger: “Justice Sotomayor, in that latter case, if that truly a product he wouldn’t sell to any other customer, he would not have to sell it to this customer. But if it’s a question of a cake he would sell to any other customer, he cannot say I have a very strong objection to interracial or interfaith marriages and I don’t want to send message about those — those events, and so I’m not going to sell it to you. That’s discrimination. It wouldn’t be appropriate under Colorado law, and it would be a First Amendment objection.” (Trans. p. 62)

Word Messages

Alito: “So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?” (Trans. p. 68)

Expressive Conduct

Alito: “Are the words on the cake expressive conduct or are they not speech?” (Trans. p. 80)

David Cole for Private Respondents 

Cole: “Your Honor, that is regulated by Colorado here is not the words on the cake. The conduct that -­that Colorado regulates is the sale by a business that opens itself to the public, invites everybody in, it’s — it’s regulating the conduct of refusing a transaction . . . to somebody because of who they are.” (Trans. p. 80)

Cole: “It doesn’t matter whether it’s speech or whether it’s not speech.” (Trans. p. 80)

Alito: “But you just said, and I understand Mr. Yarger’s position for Colorado to be the same, is that someone can be compelled to write particular words with which that person strongly disagrees.”(Trans. p. 81)

Cole: “If he has written the same words for others, and the only difference is the identity of the customer, yes, so, again, a baker could sincerely believe that saying happy birthday to a black family is different from saying happy birthday to a white family, but we would not say that, therefore, it is permissible for a baker to say: birthday cakes for whites only.” (Trans. p. 81)

Alito: “So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -­a vow — vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message. But you would say, well, it’s too bad because you’re a public accommodation. Am I right?” (Trans. p. 82)

No Request for Design

Cole: “There was no request for a design. There was no request for a message. He refused to sell them any wedding cake. And that’s identity-based discrimination. It is not a decision to refuse to put particular words on it.” (Trans. p. 77)

Messages Conveyed: Identity of Customer / Identity of Baker

Colorado Solicitor General Frederick R. Yager (credit: SCOTUSblog)

Gorsuch: “The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?” (Trans. p. 24)

Gorsuch: “[Assume we have a case involving the] Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?” (Trans. p. 84)

Cole: “No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.” (Trans. p. 75)

Hair Stylists & Makeup Artisits 

Kagan: “[What about a] air stylist?” (Trans. p. 12)

Waggoner: “Absolutely not. There’s no expression or protected speech in that kind of context . . . .” (Trans. p. 12)

Kagan:: “Why is there no speech in — in creating a wonderful hairdo?” (Trans. p. 12)

Kagan: “[What about] the makeup artist?”(Trans. p. 12)

Waggoner: ” No. . . .” (Trans. p. 12)

Kagan: : “It’s called an artist. It’s the makeup artist.” (Trans. p. 12)

Kagan: “[Y]ou have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?” (Trans. pp. 13-14)

Ginsburg: “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist.” (Trans. p. 26)

Francisco: “[T]hat’s, of course, the question that the Court — Court has to answer at the threshold of every Free Speech Case. Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service.” (Trans. p. 26)

Kennedy: “But the problem for you is that so many of these examples — and a photographer can be included — do involve speech. It means that there’s basically an ability to boycott gay marriages.” (Trans. pp. 26-27)

Architectural Design Read More


FAN 170 (First Amendment News) Masses case “reargued” in 2nd Circuit — Floyd Abrams vs Kathleen Sullivan

What follows is a short article by Professor Thomas Healy based on a “reargument” of Masses Publishing Co. v. Patten (2nd Cir., 1917), which overruled Judge Learned Hand’s district court opinion.

The event was hosted by the Second Circuit Court of Appeals in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association. 

Second Circuit Chief Judge Robert Katzmann introduced the event. Noted First Amendment lawyer Floyd Abrams appeared on behalf of Postmaster Patten and Kathleen Sullivan (former Stanford Law dean and seasoned appellate litigator) appeared on behalf of the Masses Publishing Co.

The case was argued before Circuit Judges 

Professor Healy, who attened the “reargument,” kindly offered this article for the benefit of FAN readers.  

→ A video of the oral arguments can be found here on the online First Amendment Library.

* * * * 

Prof. Thomas Healy (credit: Sean Sime)

If It Please the Court

“I’m the force of darkness tonight,” said Floyd Abrams in the lobby of the federal courthouse in Manhattan last week. It was an unfamiliar role for Abrams, the eminent First Amendment attorney who has spent his career defending the forces of enlightenment. But tonight, the script was flipped. Abrams was appearing for the government in a “reargument” of a landmark free speech case decided a hundred years ago, during World War I.

Judge Learned Hand

The post office had banned from the mail a radical magazine called The Masses because of its criticism of the war, and Judge Learned Hand had bravely ruled in the magazine’s favor. His colleagues on the appeals court had been less valiant, reversing his opinion and emboldening the Justice Department to arrest nearly two thousand people under the Espionage Act. Now, in a bit of historical reimagining, a panel of three current appeals judges had gathered to see if they could do better, and Abrams was given the task of arguing the government’s case.

His strategy quickly became clear. “I would urge the court to keep two things in mind,” he began. “First, we are at war – over five million soldiers have died and over forty million soldiers and civilians have died or been wounded.”

“Does the right of dissension become a casualty of war?” Judge Denny Chin broke in. “I wouldn’t say a casualty,” replied Abrams, “but that circumstance has to be taken into account.”

“What about the war on terror, where it’s been going on forever?” Chin asked, jumping ahead of the story. “If war became the rule and not the exception, we might as well just have one standard,” said Abrams. But this was World War I, he reminded the judges – a defined war, with defined enemies. “There were enormous casualties occurring, enormous turmoil on the streets.”

Abrams is eighty-one years old, with a fringe of white hair and an easy, avuncular style. He doesn’t spar with judges or overwhelm them with facts. He chats casually with them until they are lulled into a state of acquiescence. It was happening already.

“Isn’t the law in your favor here in 1917?” asked Judge Pierre Leval.

“I’m ready to sit down,” Abrams offered.

“You’re here to persuade us,” Leval responded.

“I’m starting out ahead of the game, I think.”

His adversary, Kathleen Sullivan, had some catching up to do. The former dean of Stanford Law School, Sullivan tried to turn the discussion from war to democracy. That had been Hand’s approach in his Masses opinion. Conceding the government’s power to prosecute the war, he had argued that the Espionage Act should be read narrowly in light of “the normal assumption of democratic government that the suppression of hostile criticism does not turn upon the justice of its substance or the decency and propriety of its temper.” Hand had risked his reputation in writing those words, and he fell into despair when the appeals court reversed him. Later, he blamed the decision for his failure to reach the Supreme Court.

Floyd Abrams & Kathleen Sullivan in front of bust of Judge Learned Hand.

Sullivan was here to vindicate him. The courtroom was filled with free speech lawyers, scholars, and enthusiasts. A bust of Hand looked on. “We do not in our First Amendment tradition allow people to be punished or silenced because they have brought the government into odium,” Sullivan told the judges.

“What about during war?” Chin asked, picking up where Abrams had left off.

“I don’t question the power of Congress to limit activities, including speech, that threaten the war effort,” Sullivan replied. But The Masses had been blocked from the mails for publishing cartoons and poems that posed no imminent danger. “I should win easily,” she added.

Afterward, the judges reflected on the significance of the Masses case and the expansion of free speech rights over the past century. No decision was issued, but Judge Leval seemed to speak for the court when he expressed some doubt about Hand’s ruling. “It’s a very sly opinion,” he noted. “Hand knew perfectly well there was no precedent supporting it.”

Sullivan was gracious in imaginary defeat. She walked over to Abrams and extended her hand, which he kissed. Soon he was surrounded by admirers, who marveled at his ability to switch sides so effortlessly and adopt the position of his nemesis.

“How did it feel?” an observer wanted to know.

“It was liberating.”

↓ ↓ ↓ ↓

→ Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

→ Related Forthcoming Book: Eric Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech

Related book: Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America (2013)


FAN 169.2 (First Amendment News) Court grants cert. in three free speech cases — five such cases this term

As listed below, the Roberts Court has rendered rulings in 44 free-speech First Amendment cases. And its eagerness to decide such cases continues. Earlier today, the Court granted cert. in three more free speech cases, this in addition to the Masterpiece Cakeshop case, which will be argued on December 5th, and Janus v. American Federation of State, Municipal and County EmployeesThe three new cases are:

  1.  Minnesota Voters Alliance v. Mansky (Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment. // lead counsel for Petitioner: Wencong Fa)
  2. National Institute of Family and Life Advocates v. Becerra (Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the 14th Amendment. // lead counsel for Petitioner: David A. Cortman)
  3. Lozman v. City of Riviera Beach, Florida (Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law. //  lead counsel for Petitioner: Pamela S. Karlan)

Comment: Generally speaking, each Court has its constitutional law centerpiece.

  • for the Fuller Court it was Substanive Due Process
  • for the Hughes Court it was the Commerce Clause
  • for the Vinson Court it was, among other things, the Communist-era cases
  • for the Warren Court it was Equal Protection
  • for the Burger Court it was the Criminal Justice counter-revolution
  • for the Rehnquist Court it was Federalism, and now
  • for the Roberts Court it is free-speech freedom under the First Amendment.

Roberts Court Free- Speech First Amendment Cases (from FIRE’s First Amendment online library):

  1. Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)
  2. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006)
  3. Garcetti v. Ceballos, 547 U.S. 410 (2006
  4. Randall v. Sorrell, 548 U.S. 230 (2006
  5. Beard v. Banks, 548 U.S. 521 (2006)
  6. Davenport v. Washington Educ. Association, 551 U.S. 177 (2007)
  7. Tennessee Secondary School Athletic Association v. Brentwood Academy, 551 U.S. 291 (2007)
  8. E.C. v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)
  9. Morse et al. v. Frederick, 551 U.S. 393 (2007)
  10. United States v. Williams, 553 U.S. 285 (2008)
  11. Davis v. Federal Election Commission, 554 U.S. 724 (2008)
  12. New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)
  13. Pleasant Grove City, UT, et al v. Summum, 555 U.S. 460 (2009)
  14. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)
  15. Ysursa v. Pocatello Educational Association, 555 U.S. 353 (2009)
  16. Locke v. Karass, 555 U.S. 207 (2009)
  17. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
  18. United States v. Stevens, 559 U.S. 460 (2010)
  19. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
  20. Christian Legal Society v. Martinez, 561 U.S. 661 (2010)
  21. Milavetz, Gallop, & Milavetz v. United States, 559 U.S. 229 (2010)
  22. Doe v. Reed, 561 U.S. 186 (2010)
  23. Snyder v. Phelps, 562 U.S. 443 (2011)
  24. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
  25. Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)
  26. Borough of Duryea v. Guarnieri, 564 U.S. 379 (201
  27. Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011)
  28. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)
  29. Reichle v. Howards, 132 S. Ct. 2088 (2012)
  30. Golan v. Holder, 132 S. Ct. 873 (2012)
  31. Knox v. Service Employees International Union, 132 S. Ct. 2277 (2012)
  32. United States v. Alvarez, 132 S. Ct. 2537 (2012)
  33. Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013)
  34. McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014)
  35. Wood v. Moss, 134 S. Ct. 2056 (2014)
  36. Lane v. Franks, 134 S. Ct. 2369 (2014)
  37. Harris v. Quinn, 134 S. Ct. 2618 (2014)
  38. McCullen v. Coakley, 134 S. Ct. 2518 (2014)
  39. Williams–Yulee v. The Florida Bar 135 S. Ct. 1656 (2015)
  40. Walker v. Sons of Confederate Veterans (2015)
  41. Reed v. Town of Gilbert 135 S. Ct. 2218 (2015)
  42. Expressions Hair Design v. Schneiderman581 U.S. ___ (2017)
  43. Matal v. Tam582 U.S. ___ (2017)
  44. Packingham v. North Carolina, 582 U.S. ___ (2017)

FAN 169.1 (First Amendment News) FIRE calls on Brandeis President to reinvite playwright to present controversial Lenny Bruce Play

disclosure: I was one of the signatories to this letter to Brandeis University’s President. 

Press release from Foundation for Individual Rights in Education:

An open letter to Brandeis regarding the cancellation of Lenny Bruce-inspired play, ‘Buyer Beware’

Ronald D. Liebowitz                                                                                                           November 13, 2017
Office of the President, MS 100
Irving Enclave 113
Brandeis University
415 South Street
Waltham, MA 02453


Sent via U.S. Mail and Electronic Mail (

Dear President Liebowitz,

Ronald D. Liebowitz, President of Brandeis University

We are a group of free speech advocates with a resilient interest in comedian Lenny Bruce’s life and legacy. We write to you today because we are concerned by recent reports that a play scheduled to be staged this month at Brandeis University was postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” We call upon Brandeis to reaffirm the principles of freedom of expression, inquiry, and debate upon which any institution of higher education must be based, and to commit itself to engaging with the challenging material in the play by staging it as intended — not censoring it.

It is our understanding that the play, “Buyer Beware,” written by celebrated playwright and Brandeis alumnus Michael Weller, uses excerpts and ideas from Lenny Bruce’s routines as catalysts for a fictional debate about free speech on Brandeis’ campus. Lenny Bruce’s comedy has long been both controversial and groundbreaking. During his lifetime, he was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. “We drove him into poverty and bankruptcy and then murdered him,” said Vincent Cuccia, one of Bruce’s New York prosecutors. “We all knew what we were doing. We used the law to kill him.”

[Ronald D. Liebowitz, Oct. 26, 2016: Lenny Bruce exerted an impact upon his contemporaries and successors like no one else in his field, and his influence on comedy and well beyond comedy continues today. . . .  It is quite appropriate that Brandeis, with our motto of truth even unto its innermost parts, is now home to the personal papers of an individual who deeply believed in that same ideal, even to the point of persecution. We are honored to have been chosen as the keepers of this historic collection . . . . ]

Americans have since recognized the injustices dealt to Bruce. He was the last comedian to be criminally prosecuted for obscenity in the United States. Today, Bruce is revered as a champion of free speech and First Amendment principles — so much so that he was posthumously pardoned by New York Governor George Pataki in 2003. His life story serves as a cautionary tale of what happens when we censor artistic expression.

Playwright Michael Weller

Given this history, the undersigned are sensitive to the possibility that Bruce’s words may again be censored. Our unease is amplified by the fact that such censorship may occur at Brandeis University, named after the staunch free speech advocate and United States Supreme Court Justice Louis Brandeis. Our concern is all the greater insofar as the university is the institutional custodian of the Lenny Bruce archives and much of Bruce’s legacy.

A 2004 box set of Bruce’s comedy was titled “Let the Buyer Beware.” Perhaps not coincidentally, “Buyer Beware” is also the title of Weller’s play. Surely when Brandeis accepted the responsibility of preserving Bruce’s archives within its library, it well understood the risks associated with doing so — caveat emptor — and tacitly, if not explicitly, agreed that it would spare Bruce the injustice of committing or enabling his posthumous censorship.

In a statement responding to the cancellation of the fall production of “Buyer Beware,” Brandeis announced that “faculty members considered the challenging issues [the play] raised” and decided that more time was needed to produce the play “appropriately.” The statement goes on to relinquish the university’s responsibility for the play’s subsequent cessation by foisting responsibility upon Weller, who did not approve of this more “appropriate” production, which subsequent reports indicate was not even presented to him. According to a statement from the Dramatists Guild of America and the Dramatists Legal Defense Fund, Weller “has heard only indirectly about the possibility of doing it at ‘a 60-seat black box theatre in Watertown that has some lights, and a budget for one or two professional actors.’”

Kitty Bruce (daughter of Lenny Bruce & signatory to letter)

Numerous reports indicate that the decision to forestall the planned production of “Buyer Beware” comes amid a concerted effort by some Brandeis students and alumni to cancel the play. The campaign was allegedly led by a Brandeis alumna, who reportedly admitted to having never read the play’s script, yet claimed that it “is an overtly racist play and will be harmful to the student population if staged.” Scholars of Bruce’s life know well that attempts at prior restraint are insidious and beget more censorship. Indeed, after Bruce was first prosecuted in one court, additional prosecutions soon followed. “Don’t lock up these 6,000 words,” Bruce pleaded to one New York City judge during a court hearing.

We write to ask for more details about Brandeis’ decision to cancel this month’s production of “Buyer Beware.” What material, exactly, did the university consider too “challenging” for its students and faculty? And why, when an agreement could not be reached with Weller to find a more “appropriate” setting for the play, did the university decide not to stage the production as intended, and instead defaulted to functionally censoring the “challenging” material instead of openly engaging with it?

comedian Penn Jillette (signatory to letter)

We call upon Brandeis University to answer these questions in a manner consistent with the principles of freedom of speech to which the university claims to commit itself, principles that are integral components of Lenny Bruce’s and Louis Brandeis’ legacies. If it cannot, we ask you to immediately reverse the decision to cancel this month’s production of “Buyer Beware” and to reinvite Weller to stage it as intended. The play itself presents a direct challenge to the university —  according to The Brandeis Hoot: “If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?”

Again, we urge the university to commit itself to reinviting Weller to stage “Buyer Beware” as intended, thereby defending the very free speech principles for which Lenny Bruce fought throughout his life.

lawyer Robert Corn-Revere (signatory to letter)

To you, President Liebowitz, we repeat the question and also ask: Did the Lenny Bruce archives end up in the “appropriate” place?

We look forward to hearing from you by Friday, November 17.


Foundation for Individual Rights in Education

Kitty Bruce
Daughter of Lenny Bruce
Founder, The Lenny Bruce Memorial Foundation

Penn Jillette
Comedian and magician, Penn & Teller

Robert Corn-Revere
Partner, Davis Wright Tremaine LLP
Attorney responsible for successfully petitioning Governor George E. Pataki to grant the first posthumous pardon in New York history to Lenny Bruce in 2003

Ronald K.L. Collins
Harold S. Shefelman Scholar
University of Washington, School of Law
Co-author, The Trials of Lenny Bruce

David M. Skover
Fredric C. Tausend Professor of Constitutional Law
Seattle University School of Law
Co-Author, The Trials of Lenny Bruce

Noam Dworman
Owner, Comedy Cellar

Ted Balaker
Director, Can We Take a Joke?, a film about the life and legacy of Lenny Bruce

Courtney Balaker
Producer, Can We Take a Joke?


FAN 169 (First Amendment News) NAACP & other civil rights groups file brief in same-sex wedding cake case

A decision from this Court in favor of Masterpiece would require reasoning that would be readily deployed to trample the rights of the most vulnerable people in our society by excusing discrimination based upon race, national origin, or any other protected category, and would roll back the substantial strides this country has made in eradicating discrimination in our public life and economy. This Court should not open a new avenue for discrimination by commercial businesses—one that is inconsistent with this Court’s precedents and the principle that states may protect equal access to publicly available goods and services for all its residents. 

So states the amicus brief filed by the NAACP and other civil rights groups in Masterpiece Cakeshop v. Colorado Civil Rights CommissionWhat began as a religious rights case, and then into a free speech case, may well turn into a civil rights race case and more. Simply consider the opening lines of the brief filed by the Lawyers’ Committee for Civil Rights Under Law, Asian American Legal Defense and Education Fund, Center for Constitutional Rights, Color of Change, The Leadership Conference on Civil and Human Rights, National Action Network, National Association for the Advancement of Colored People, National Urban League, and the Southern Poverty Law Center:

“[P]etitioners’ proposed free speech exception to anti-discrimination public accommodation laws could decimate those laws’ critical protections for African Americans, including the growing number of African Americans who identify as lesbian, gay, bisexual, transgender (LGBT), and other minority populations that have been subjected to a history of discrimination.”

“Despite the advances our country has made in eradicating segregation and other forms of invidious discrimination, African Americans, including LGBT African Americans who experience discrimination at the intersection of race and sexual orientation or gender identity, continue to suffer from structural and pervasive discrimination, as evidenced by the recent increase in hate crimes across the country. Discrimination infects the marketplace as well, where minority consumers continue to receive worse treatment and experience disparate access to goods and services as a result of business owners’ biased attitudes. Today, public accommodation laws remain vital by providing relief when consumers experience discrimination.”

The sumamry of the argument closes with the following: “Public accommodation laws strengthen our country by ensuring our economy is an inclusive one where all people regardless of background, identity, or belief can participate free of discrimination. This Court must see Masterpiece’s arguments for what they are—a request for permission to lawfully discriminate against minorities. Business owners’ religious and speech interests must not trump the rights of disenfranchised individuals to be free from discrimination. Masterpiece’s proposed exception to public accommodation laws would potentially apply to any business and would gut this Court’s well-established precedent and nullify long standing state, federal, and local public accommodation laws, causing a dramatic rollback of hard-won civil rights protections. . . .”

Ilana H. Eisenstein (counsel of record)

“The unprecedented carve-outs proposed by Masterpiece and the federal government could apply well beyond the wedding context to other businesses that are also arguably engaged in expressive activities, such as culinary arts, interior design and architecture rms, fashion boutiques, beauty salons, and barber shops, who would prefer not to associate with racial, ethnic, or other underrepresented minorities. And even beyond artistic commercial enterprises, a free-speech exception could potentially exempt a broad range of businesses that claim free-speech objections from serving particular customer groups.”

The counsel of record in the case is Ilana H. Eisenstein. From 2014 through 2017, Ms. Eisenstein served as an Assistant to the Solicitor General, U.S. Department of Justice. In that capacity, she prepared government petitions and briefs for filing in the Supreme Court, and advised the Solicitor General regarding federal appellate litigation. She has argued five cases and briefed over 75 others in the high Court.

Knight First Amendment Institute: Digital Rights, Federal Courts, and First Amendment Experts Endorse Suit against President Trump’s Twitter Blocking

NEW YORK (November 7, 2017) – The Electronic Frontier Foundation, a group of First Amendment scholars, and a group of federal courts scholars filed amicus briefs yesterday in support of a lawsuit filed by the Knight First Amendment Institute at Columbia University contending that President Trump violated the Constitution by blocking seven people from his Twitter account because of their viewpoints. The three amicus briefs support the Knight Institute’s Friday evening filing in the lawsuit, in which the Institute argued that the president’s Twitter account is subject to the First Amendment and the court has the authority to stop the president and his aides from violating First Amendment rights.

EFF’s amicus brief contends that social media platforms — and government officials’ social media accounts in particular — play a significant role in democratic discourse and the democratic process, and therefore must be regulated by the First Amendment. Social media is also used to communicate vital public safety information, and punishing someone by denying them access can have dire consequences. Read the brief and a summary of the arguments.

“Governmental use of social media platforms to communicate to and with the public, and allow the public to communicate with each other, is pervasive. It is seen all across the country, at every level of government. It is now the rule of democratic engagement, not the exception,” said EFF Civil Liberties Director David Greene. “The First Amendment prohibits the exclusion of individuals from these forums based on their viewpoint. President Trump’s blocking of people on Twitter because he doesn’t like their views infringes on their right to receive public messages from government and participate in the democratic process.”

Prof. Stephen Vladeck

A group of eight federal-courts scholars joined an amicus brief prepared by Brian Burgess and Andrew Kim of Goodwin Proctor with Professor Steve Vladeck of the University of Texas Law School. The brief contends that the court has the authority to enjoin the president for his official conduct, and that the ruling in the case Mississippi v. Johnson does not prohibit the court from doing so, in light of more recent Supreme Court cases. Read the brief.

“Our brief offers a modest contribution by highlighting how, contrary to the government’s argument, federal courts can — and periodically do — issue coercive relief directly against a sitting president,” said Vladeck. “The government relies for the contrary view on language taken out of context from a 150-year-old Supreme Court decision, but as we demonstrate, that language, even read for all it’s worth, has been overtaken by subsequent events — and for good reason.”

Prof. Joshua Geltzer

The final amicus brief was filed by Georgetown Law Center’s Institute for Constitutional Advocacy and Protection on behalf of seven First Amendment scholars, including Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe. ICAP’s brief argues that, by fostering a dialogue on @realDonaldTrump that includes official statements of government policy, responses by other Twitter users, and replies by the president to those responses, the president has created a digital-age public forum under the First Amendment, which prohibits viewpoint discrimination such as blocking critics. Read the brief and a summary of the arguments.

“This case is about applying established First Amendment principles to emerging technologies,” said ICAP’s Executive Director and Visiting Professor of Law Joshua Geltzer. “When the government creates a space for public discussion and debate, whether in a physical or virtual setting, it creates a public forum. The Constitution then bars the government from silencing those who question it and giving voice only to those who praise it.”

For more information, go here.

Related: Adam Liptak, Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers, New York Times, Nov. 6, 2017

Controversy over Lenny Bruce play heats up at Brandeis University 

       Brandeis University poster for 2016 program on Lenny Bruce

Following a flood of complaints, Brandeis University has scrapped plans for the performance of a controversial play on its campus accused of being critical of the Black Lives Matter movement. — The College Fix, Nov. 1, 2017

Michael Weller told Boston public radio station WBUR-FM that he was “personally heartbroken” over the decision and called the handling of his play by the university department “dangerous and corrosive.” Playbill, Nov. 7, 2017

The Comedian & the University: The papers and audio files of Lenny Bruce, the ribald comedian who changed the face of American comedy, are housed at Brandeis University (his obscenity trial transcripts are available on FIRE’s online First Amendment Library).  The Lenny Bruce Collection came to Brandies in 2014 thanks to a grant from the Hugh M. Hefner Foundation. In late October of 2016, Brandeis held a symposium to mark the occasion with Kitty Bruce (the comedian’s daughter), Christie Henfner (CEO of Playboy Enterprises and former Brandeis University Trustee), and Lewis Black (the famed comedian) as featured speakers.

Assumption of the RiskOf course, by agreeing to house the Lenny Bruce papers and recordings, Brandeis University necessarily assumed the risk that comes with such a responsibility — i.e., the propsect of offending some people.

Playright Michael Weller

Were the faculty and administration of Brandeis University prepared to assumed that risk? That question came to the forefront when the playright Michael Weller attempted to show a Lenny Bruce play (“Buyer Beware”) at Brandeis, his alma mater.

The Plot’s the Thing (from The Brandeis Hoot): “Sitting outside a dorm, the main character, Ron, repeats what he hears on his MP3 as he listens to audio recordings of Lenny Bruce, a white stand-up comedian who drew national attention in the 1950s and 60s for his obscenity-laced performances and unyielding commitment to free speech. Ron found the audio in the Lenny Bruce archives in the Brandeis library. The supposed quote contains eight uses of the n-word and four other slurs which are also repeated.

“‘Imagine if we just kept saying these words over and over again, sooner or later they’d become meaningless noise,’ says Ron quoting Bruce, in between chains of slurs. A black student overhears Ron’s quotation of Lenny Bruce and then takes to Facebook to express himself.”

“Ron plans a comedy routine in the style of Lenny Bruce but does not intend to use Bruce’s exact language. The Brandeis administration threatens him with academic probation in hopes he will cancel his performance so that student protests do not fall on the same night that a wealthy alum, who has criticized student protests including Ford Hall 2015, visits campus.”

“At the climax of the play Ron performs and students protest. . . . In the play, his comedy performance is a direct challenge to the Brandeis administration. ‘If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?’ he says.”

The Controversy 

This from Sopan Deb at the New York Times: “Brandeis University canceled an upcoming play about the comedian Lenny Bruce after some students and faculty expressed outrage about its content, the school announced on Monday.”

“The play, called “Buyer Beware,” was written by Michael Weller, an alumnus of the school and a playwright with a body of work that includes 1971’s “Moonchildren.” “Buyer Beware” was supposed to go on stage this month, but according to a statement from Brandeis, faculty started raising objections last summer.”

“Theater faculty members, the statement said, ‘felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming.’ . . .”

→ More from The Brandeis Hoot: “Rather than put on a performance of ‘Buyer Beware,’ the School of Creative Arts will offer a course in the spring ‘devoted to the challenging issues Michael’s work evokes.'”

Brandeis University’s statement related to the Creative Arts Award and ‘Buyer Beware’

“In January, Brandeis University will proudly present Michael Weller ’65 with the Creative Arts Award to celebrate his significant body of work, which includes more than 40 works for the theater, including “Moonchildren” and “Loose Ends,” and such films as “Ragtime” and “Hair.” Mr. Weller will add this award to an already impressive list of honors, including an Academy Award nomination, an NAACP Outstanding Contribution Award and a Drama Desk Award.”

“Last year, Mr. Weller was hosted by the theater department on campus, where he conducted research in the Lenny Bruce archives and engaged with students, faculty, administration, staff and maintenance personnel. He drew on this research to draft a script for a new play titled “Buyer Beware,” named after Lenny Bruce’s celebrated recording. Originally, the play was part of the theater department’s performance schedule for this November.”

“After receiving a draft script of ‘Buyer Beware’ in early July, theater faculty members considered the challenging issues it raised. They felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming. In early September, Mr. Weller and faculty discussed possible dates in February for the production of the play. Mr. Weller was also informed about the creative arts faculty’s decision to design a team-taught course around the play and other provocative works of art in the spring semester, which would accompany the production of the play. However, it was the playwright’s sense, in his own words, “that rehearsals of the play, and growing sentiment among some students in the theater department, might not be conducive to the creative atmosphere desired for a premiere presentation of a new work,” and so Mr. Weller made the decision to produce it elsewhere in a professional venue, rather than at Brandeis.    

“While the play will not be performed on campus because of Mr. Weller’s decision to produce it professionally elsewhere, a course will be offered this spring and is currently being designed by faculty. It will allow Brandeis faculty to do what they do best — engage in rigorous educational work — by devoting a full semester to analyzing and openly discussing provocative works of art that may cause discomfort, including the legacy of Lenny Bruce. The course will explore a broad range of artistic genres, including visual art, theater, film, music and literature, with the help of experts and visiting artists as well as Brandeis faculty. . . .”

“The university will be honored to celebrate Mr. Weller’s artistic achievements at the Creative Arts Award ceremony on January 23rd.”

 Knight First Amendment Institute Posts Exchanges on “Who Pays for the First Amendment?’”

Read More


FAN 168.1 (First Amendment News) Prof. Alan Morrison Weighs in on Facts Issue in Cake Case

Earlier today I posted an issue of First Amendment News entited Resolution of wedding cake case — is it all about fashioning the facts?

In resposne to that, Professor Alan Morrison wrote to me inquiring how the factual dispute in the case might play out in the future, and then he raised this question: “Will this end up being a case in which parties can determine outcomes in the future by tailoring their speech and response?” Intrigued by that question, I invited Alan to elaborate. His comments are set out below. For the benefit of the reader, I have reinserted my five scenarios since Alan referenced them.

* * * * 

Ron Collins raises the interesting question of whether the facts in Masterpiece Cake case may play a very significant role in the outcome, based on which of (at least) his five scenarios  (dare I say “alternative facts”) the Court accepts. Presenting these alternative scenarios raises several thoughts that may be worth considering.

* * * * 

Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 3:  Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase  two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

* * * * 

Prof. Alan Morrison (credit: GW Today_

It appears that the exchange between the buyers and the seller that gave rise to this case was very brief and was almost surely not carried out with the legal issue now before the Court in the minds of anyone.  From what I have read, the alternatives Ron discusses were not fleshed out in this exchange and so what each party now says it wanted may have no bearing on what, if anything, was going through their minds at the time.  To add to the uncertainty, the exchange was so brief, and perhaps infused with emotion on both sides, that any nuances now suggested were either not picked up or lost in the moment.

If the Court’s decision turns on which scenario it accepts as what actually happened, how much confidence should we have that the Court’s “facts” will be the “real” facts — whatever that means?  The only saving grace is that the remedy ordered does not include money damages and any injunction that is upheld is likely to be quite targetted, which brings me to my next thought.
Despite its emotional importance, this decision is likely to be of only modest significance, unless the Court takes an extreme position one way or the other. Suppose the Court says that artistic cake making is protected, but only if the baker is clear that this is a very limited exception. And assume further that cake makers — and perhaps florists and photographers — get the word and now know what they must say, and may not say, if they want to honor their consciences and avoid liability.  My hunch is that they will probably able to find a way to do that, and the cake buyers will still be able to get their cakes (and eat them too) in most situations.
Finally. I think (perhaps hope ) that this decision may have limited real world impact based on the fact that there are probably very few people in business who will turn away customers for reasons of conscience, not only because of the direct lost income, but because of what an adverse Internet posting may do for their business more generally.  And on the other side, will those few buyers who are turned down for reasons of conscience care enough to spend the time and money to establish a principle, or instead go to another shop that actually wants to serve them?

As a lawyer who has brought cases where the principle is as important as the benefits to the client, I applaud the buyers here for making the complaint and carrying it to the Supreme Court.  But my point is only that, once the Supreme Court speaks, there is not likely to be many follow-on cases, which is probably to the good for everyone.

Alan Morrison

FAN 168 (First Amendment News) Resolution of wedding cake case — is it all about fashioning the facts?

With oral arguments set for December 5th in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the central arguments in the case may have less to do with the law and more to do with the particular facts. On the one hand, if the relevant facts prove that there was no more than refusing to bake a cake for a gay couple, then the road to First Amendment victory will be a difficult one. On the other hand, if the pertinent facts point to a request followed by a refusal to create or design a cake for a gay weddding, then the First Amendment free expression claim will be far stronger.

So which is it? Is this a baking case or a create and design case?  To answer that question, I turned to some of the briefs presented in the case. Before going there, however, consider the following five scenarios:

Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 3:  Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase  two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Question: For First Amendment freedom of expression purposes, does the difference in facts require different constitutional outcomes? 

The Briefs in the Case


Colorado Court of Appeals’s Statement of Relevant Facts

“In July 2012, Craig and Mullins visited Masterpiece, a bakery in Lakewood, Colorado, and requested that Phillips design and create a cake to celebrate their same-sex wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs . . .” [underlining added]

→ Mullins v. Masterpiece Cakeshop, Inc. (Colo. App., 2015)

Petitioner’s Statement of Relevant Facts

“Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design. App. 275-277a, ¶¶16-22, 25. For this reason, Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding, App. 287a, ¶ 78, but offered to make any other cake for them, id., ¶ 79.” [underlining added]

Cert Petition by Jeremy Tedesco (counsel of Record)

“Phillips carefully chose Masterpiece’s name: it would not be just a bakery, but an art gallery of cakes. With this in mind, Phillips created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting Phillips painting at an easel. Since long before this case arose, Phillips has been an artist using cake as his canvas with Masterpiece as his studio. . . .”
“Phillips gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations. JA164. But he cannot design custom cakes that express ideas or celebrate events at odds with his religious beliefs. JA158-59, 164-66. For example, Phillips will not design cakes that celebrate Halloween; express anti-family themes (such as a cake glorifying divorce); contain hateful, vulgar, or profane messages (such as a cake disparaging gays and lesbians); or promote atheism, racism, or indecency. JA165.”

“Craig and Mullins were browsing a photo album of Phillips’s custom-design work, JA39, 48, 89, when Phillips sat down with them at his consultation table, JA168. After Phillips greeted the two men, they explained that they wanted him to create a cake for their wedding. Id. Phillips politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them. Id. Craig, Mullins, and Munn expressed their displeasure and left the shop. JA43, 168.” [underlining added]

Petitioner’s Merits Brief by Kristen K. Waggoner (counsel of Record)

Government’s Statement of Relevant Facts

“In July 2012, respondents Charlie Craig and Da- vid Mullins visited Masterpiece and asked Phillips to ‘design and create a cake to celebrate their same-sex wedding.’ Pet. App. 4a.” [underlining added]

“Craig and Mullins sat down with Phillips at Master- piece’s ‘cake consulting table’ and told him that they wanted a cake for ‘our wedding.’ Pet. App. 64a. Phillips informed the couple that he does not create wedding cakes for same-sex weddings, but that he would make them any other type of cake or other baked good.”  [underlining added]

Brief for the United States as Amicus Supporting Petitioners, Jeffrey B. Wall (Acting Solicitor General)


Amy Howe: “because Phillips . . . believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.” [Underlinning added]


Respondents’ Statement of Relevant Facts

“Mullins and Craig expressed interest in buying a cake for “our wedding.” Pet. App. 64a. Phillips refused to serve them, explaining that the Company had a policy of refusing to sell baked goods for weddings of same-sex couples. Pet. App. 65a.2 Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. Pet. App. 65a. As the Administrative Law Judge in the Colorado administrative proceedings found, “[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.” Pet. App. 75a.”  [Underlining added]

Brief in Opposition Leslie Cooper (counsel of Record)


David Savage: “‘Sorry, guys, I don’t make cakes for same-sex weddings.’ With that blunt comment, Jack Phillips, a baker who designs custom wedding cakes, sent two men out the door and set off a legal battle between religious liberty and gay rights that comes before the U.S. Supreme Court this fall.” [Underlining added]

“Food preparation is not a core First Amendment Activity”

“Amici are a group of 222 leading chefs, bakers, and restaurateurs from across the country. They submit this brief to convey their first-hand perspective, as culinary artists, on why application of public accommodation laws in cases such as this one do not impinge on the core expressive exercise of their talent and skill. . . .”

“Notwithstanding the talent and skill required to create fine cuisine, and the expression that may flow from it, amici acknowledge that food preparation is not a core First Amendment activity. Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component: it is made to be eaten. For that reason, food products (and their preparation) are not necessarily protected by the First Amendment.. . . ”

“Even when prepared by renowned chefs, food retains a clear non-expressive purpose—namely, consumption. No matter how intricate, creative, and aesthetically pleasing a dish might be, it is not designed to be displayed in perpetuity, but rather to be served and eaten. With a clear “non-expressive purpose,’ food items may be appropriately “classified as *** ‘commercial good[s],’ the sale of which likely falls outside the scope of the First Amendment.‘ . . . .” [citation omitted and underlining added]

“Whether or not the creation of cakes or other food products implicates the First Amendment, any such protection does not entitle a chef to violate laws and regulations that do not target expressive activity. A chef may not evade health laws that preclude the use of certain unsafe ingredients on the ground that he prefers to cook with them. . . .” [Underlining added]

Brief of Chefs, Bakers, and Restaurateurs as Amici in Support of Respondents, Pratik A. Shah  (counsel of Record)

Car Dealership Raises First Amendment Defense in Firing Transgender Person

Bradley Rudkin

Writing in LGBTQ Nation, David Reddish reports: “Furthering its image as a state of irritable bigots, a Texas car dealership claimed protection under the First Amendment this week in a lawsuit by a former employee who says the business fired him because he’s transgender.”

“Bradley Rudkin, the former general sales manager of Roger Beasley Mitsubishi, an Austin based car dealership, filed a lawsuit on August 1 claiming wrongful termination from his job. Ruskin, a transgender man, claims the business fired him without warning solely for being transgender. Lawyers for the car dealership filed a motion to dismiss the lawsuit, claiming that the business had a right to fire Ruskin as a matter of free speech. Attorneys for the Mitsubishi dealership have argued that firing Ruskin makes a public statement, and therefore the business was within its legal rights to do so. . . .”

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FAN 167.3 (First Amendment News) Campus Speech Debate Continues: Enter Nadine Strossen — Senate Testimony (8 Points)

Below is the text of the written testimony presented by New York Law School Professor Nadine Strossen to the Committee on Health, Education, Labor and Pensions on “EXPLORING FREE SPEECH ON COLLEGE CAMPUSES” – Thursday, October 26, 2017, 10 a.m. 


Professor Nadine Strossen

I would like to thank Chairman Alexander and Ranking Member Murray for convening this hearing on such a critically important topic, and giving me the opportunity to participate.

Chairman Alexander has asked me to summarize the legal standards governing freedom of speech in higher education, “and what speech limitations schools may impose, particularly for so-called `offensive speech’ or `hate speech.’” I am honored to have the opportunity to do this, especially as I have just written a book directly on point: HATE: Why We Should Resist It With Free Speech, Not Censorship (Oxford University Press, May 2018).

Summary of the most important First Amendment principles – which are especially important on campus, for the education and empowerment of all students, including those who have traditionally been subject to discrimination, and those who are activists

The research and analysis reflected in my forthcoming book have made me more appreciative than ever of the two most fundamental general First Amendment principles, which are essential pillars of not only individual liberty, but also equality and democracy, including on our nation’s campuses:

  • the viewpoint neutrality principle, which bars government from punishing any speech based solely on dislike of its viewpoint, no matter how deeply or widely despised that viewpoint might be; and
  • the emergency principle, which permits government to punish speech when it directly causes specific imminent serious harm, such as constituting a genuine threat, targeted harassment or “bullying,” or intentional incitement of imminent violence.

These robust speech-protective principles have consistently been endorsed for many decades, by Supreme Court Justices across the ideological spectrum. The Court likewise has neutrally enforced these principles to protect controversial expression ranging across the ideological spectrum: from left-wing protestors burning an American flag, to right-wing demonstrators burning a cross. Just this past June, the Court ringingly reaffirmed the First Amendment’s protection even for hateful and hated speech, unanimously striking down a federal law that denied registration to trade names that “disparaged” particular individuals or groups. As the Court declared: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express `the thought that we hate.’” Matal v. Tam, 137 S. Ct. 1744, 1764 (2017), quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

In my capacity as a human rights activist, I am convinced, based upon the historic and current record, that these cardinal First Amendment principles are essential for furthering any political or social cause, including human rights. This conclusion is reaffirmed by examining how “hate speech” laws recently have been enforced in other comparable countries; they have disproportionately suppressed dissenting views and disempowered speakers.

Speaking in my capacity as a full-time educator for 33 years,* I am also convinced based on experience that these speech-protective principles are essential for effectively educating and empowering our nation’s future leaders and engaged citizens, and thus for maintaining a vibrant democracy. Being exposed to a diverse range of ideas, including those they consider “hateful,” and which they hate, is important for all students, including those who belong to groups that have traditionally been subject to discrimination or marginalization, and those who are engaged in activism on behalf of various causes. Therefore, when colleges and universities seek to punish controversial speech, or to shield students from it, they are not only violating the students’ (and others’) free speech rights, but they are also denying the students the rigorous education they deserve, and hence depriving our society of fellow citizens who are optimally equipped to participate constructively in our democratic self-government.

* The position of ACLU President is unpaid; while I served in that position, I continued to earn my living as an NYLS professor. Before joining the NYLS faculty in 1988 I began my teaching career as a clinical law professor at NYU Law School (1984-88).

Significantly, the preceding points have been strongly endorsed by politically diverse leaders who are members of minority groups, and who have themselves experienced the sting of “hate speech,” including former President Barack Obama. (Appendix A to this testimony includes quotations from him and from other ideologically diverse leaders who are all members of racial minorities, and who all oppose censorship of “hate speech,” including on campus, on the ground that such censorship would undermine equality and meaningful educational opportunities, including for minority students and student activists.)

List of key points discussed below

In the remainder of this written testimony, I will elaborate on the above themes by briefly discussing the following points:

  1. The Supreme Court has strongly enforced free speech principles on public campuses, including the cardinal viewpoint neutrality and emergency principles: that government may never suppress speech solely due to its disfavored viewpoint, but rather government may only suppress speech when it poses an emergency — e.,, it directly causes specific imminent serious harm, such as a “true threat,” targeted harassment, or intentional incitement of imminent violence that is likely to happen immediately.
  2. Many private campuses, which are not directly governed by the First Amendment, have chosen to protect the same free speech principles that are binding on public campuses, because such principles are consistent with academic freedom and sound pedagogy.
  3. “Hate speech,” which has no specific legal definition, may be punished (along with speech conveying any message) when, in context, it directly causes specific imminent serious harm. This means that hateful speech that poses the greatest danger of harm is already punishable, but such speech may not be punished when it is feared to pose a more speculative, attenuated risk of future harm.
  4. “Hate speech” laws are inevitably unduly vague and overbroad, thus leading to enforcement that is arbitrary at best, discriminatory at worst.
  5. The First Amendment protects the rights of peaceful, non-disruptive protestors. In contrast, any protest that prevents a speaker’s message from being heard constitutes an impermissible “heckler’s veto,” which violates not only the speaker’s rights, but also the rights of audience members who choose to listen to the speaker.
  6. The appropriate response to constitutionally protected “hate speech” is not censorship, violence, or disruption, but rather, “counter-speech,” which counters its ideas and any negative impact they might have. Our society must strive to provide access to educational and communications resources that will facilitate robust counter-speech, especially by and on behalf of the most vulnerable members of our communities.
  7. Equal rights movements are especially dependent on robust freedom of speech, including the viewpoint neutrality and emergency principles.
  8. Shielding students from hateful and hated ideas may well undermine their psychic and emotional well-being, as well as their education and preparation for effective participation in the workplace and the public sphere.

Brief discussion of these key points Read More