Category: First Amendment

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Looking back on Bridges v. California (1941) — Some random thoughts inspired by Floyd Abrams’ new book

The Bridges opinion was “a judicial Declaration of Independence for the First Amendment, freeing it from English law.” — Benno C. Schmidt

Harry Bridges

One sign of a good book is its ability to engage readers, to pique curiosity, and to urge one to return anew to something largely known but mostly forgotten. By that measure, Floyd Abrams’ latest book (The Soul of the First Amendment) is a valuable book.

In reading this so-called “modest essay” — Abrams tags it “ruminations about certain aspects of American constitutional law” — I was drawn back to a Bridges v. California (1941), the contentpt of court case involving the militant Harry Bridges, the then conservative Los Angeles Times, and their unrestrained comments on a then pending case.

Abrams devotes the better part of a concise chapter to this First Amendment majority opinion authored by Justice Hugo Black. The Court divided 5-4 with Justice Felix Frankfurter registering a stinging dissent.

Bridges is “a seminal but too-little recalled First Amendment case” writes Abrams.  I agree. Many con-law casebooks do not even cite the case anymore.

After reading the Bridges chapter, which is rich with important observations and comments, I went back and did some research on the case. Here is what I found — several revealing facts nearly lost to time.

Justice Douglas Edmonds

The Importance of a Forgotten State-Court Dissent: Does the name Douglas Lyman Edmonds (1887-1962) ring a bell? There is no reason it should except for the fact that he authored a powerful lone dissent when the California Supreme Court ruled on the  case in 1939.

  • Edmonds’ dissent drew in part on a 1928 Columbia Law Review article entitled “Contempt by Publication in the United States.” It was written by Walter Nelles (co-founder of the ACLU and co-counsel in Gitlow v. New York and Whitney v. California) and Carol Weiss King (one of Bridges’ lawyers and one of the founders of the National Lawyers Guild).
  • After discussing British constitutional history, Edmonds wrote: “The concept of freedom of the press, stated by Blackstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that ‘the liberty of the press … consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’ . . . is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920), 8 et seq.”
  • And then following more extended discussions of federal and state laws (decisional and statutory laws), Edmonds declared: “The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court.”
  • “The rights of freedom of speech and of the press,” Edmonds added, “have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their Constitution ‘that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.’ For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.”
  • He closed his dissent with these words: “When free speech is fettered, liberty is a meaningless word.”

More, much more, can be said about this remarkable dissent, but that is a task for another day.

A.L. Wirin

The Importance of the Counsel in the Case: Turning back the pages of history reminds us that two rather important ACLU lawyers represented Bridges in the U.S. Supreme Court:

  • Osmond K. Fraenkel argued the case. Earlier, he represented the defendants in the Sacco-Vanzetti case and was one of the attorneys for Scottsboro boys. Fraenkel argued 26 cases  in the Supreme Court.  He was the lead counsel for the petitioners in  De Jonge v. OregonKunz v. New York and Schneider v. New Jersey. [Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (2009), p. 200]
  • A. L. Wirin was with Fraenkel on the Bridges brief. Wirin was the first full‐time lawyer for the ACLU and served as chief counsel of the ACLU of Southern California for four decades. As Sam Walker noted: Wirin “particularly distinguished himself during the Japanese-American internment when he and the ACLU affiliate sought an aggressive challenge to the government’s catastrophic program.” Wirin was counsel for the petitioner in Korematsu v. United States

Here is an excerpt from the Fraenkel-Wirin brief, a passage that apparently got the attention of Justice Black when he authored his majority opinion:

“The ‘Inherent Tendency’ and ‘Reasonable Tendency’ rule applied by the California Courts to publications pertaining to issues pending in the courts are too vague and indefinite… They offend due process of law and deprive the petitioner of freedom of speech and freedom of the press… Only the application of the ‘clear and present danger’ or the ‘actual obstruction’ principle to publications alleged to be in contempt of court will reconcile the independence of the judiciary with freedom of the press.”

The Importance of Fate: The Bridges case was first argued on Friday October 18th and on Monday October 21st of 1940. At the time of the conference, Chief Justice Charles Evans Hughes found it to be an easy case. In conference he was straightforward: “The facts here transcend the limits of reasonable discussion and I think [the lower court] should be affirmed.” (Roger K. Newman, Hugo Black: A Biography (1994), p. 290).  With that he assigned the majority opinion to Justice Frankfurter with Black, Reed and Douglas in dissent.  But then Fate changed things.

Anthony Lewis

As Anthony Lewis noted, on February 1, 1941, Justice James McReynolds retired.  “That left a five-to-three majority for affirmance.” And then Justice Frank Murphy jumped ship and joined with the dissenters.  That left the vote at four-to-four.  “At the end of the term,” Lewis added, “Chief Justice Hughes retired, leaving only three votes to affirm the contempt convictions.” [Anthony Lewis, “Justice Black and the First Amendment,” in Tony Freyer, Justice Hugo Black and Modern America (1990), pp. 237-252.]

And then two new members joined the Court: Justices James Byrnes and Robert Jackson.  Byrnes voted to affirm, Jackson to reverse. The result: a new majority with Black writing for the Court and Frankfurter dissenting.

The Importance of the Date: The 5-4 ruling in Bridges v. California came down on December 8, 1941 — the day after the attack on Pearl Harbor. That was also the day when President Roosevelt spoke to Congress at noon to request a declaration of war from the House.

Meanwhile, at the Court there was great division. On the one hand, Justice Black declared that “[h]istory affords no support for the contention” that speech could be abridged merely because it was directed at a judge sitting in a case. On the other hand, Justice Frankfurter was adamant that “[o]ur whole history repels the view [that a] newspaper to attempt to overawe a judge in a matter immediately pending before him.”

While war was afoot in the nation, freedom was being debated in the nation’s highest Court.

The Importance of Four Unpublished Sentences: In a draft of his original dissent, Justice Black penned the following words, which never appeared in his majority opinion:

 First in the catalogue of human liberties essential to the life and growth of a government of, for, and by the people are those liberties written into the First Amendment to our Constitution. They are the pillars upon which popular government rests and without which a government of free men cannot survive. History persuades me that the moving forces which brought about the creation of the safeguards contained in the other sections of our Bill of Rights sprang from a resolute determination to place the liberties defined in the First Amendment in an area wholly safe and secure against any invasion — even by government. [Howard Ball, Hugo L. Black: A Cold Steel Warrior (1996), p. 191]

And then there was this line: Narrow abridgments have a way of broadening themselves[Newman, supra, at p. 290, n. *]

Hugo Black (1937: credit: Harris & Ewing)

The Importance of the Bridges TestJustice Black harbored no fondness for Holmes’ clear-and-present danger test. Still, in Bridges he did give it a judicial nod of sorts, but then pointed beyond it:

What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

The Importance of  Three PrecedentsAs Anthony Lewis saw it, Bridges was part of a trilogy of First Amendment cases that changed the conceptual landscape of American free-speech law. The other two cases were Near v. Minnesota and New York Times Co. v. SullivanHere is how Lewis put it:

  • What Near did for our law of prior restraints from English tradition, and Bridges for our law of contempt, the 1964 decision in . . . Sullivan did for libel.

What is also key to these three rulings, and what also links them together, is that unlike earlier First Amendment cases that “focused on the harm speech could do,” Near, Bridges and Sullivan focused instead on “the good it could do.”

  • “Chief Justice Hughes found affirmative reasons for a free press.”
  • “Justice Brennan spoke of our ‘profound commitment to the principle that debate on public issues should be ‘uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'”
  • And then there was Justice Black: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”

* * * * *

Justice Louis Brandeis

As Frankfurter told it, Justice Brandeis allegedly agreed with him and disfavored Black’s view in Bridges: “Black and Co.,” he had Brandeis saying, “have gone mad on free speech.” [H.N. Hirsch, The Enigma of Felix Frankfurter (1981), p. 158] Professor Hirsch noted that it was not “possible to verify this story.” [Id. at 240, n. 115].

True or not, one thing was certain: “Bridges cut deeply into Frankfurter’s sense of well-being.” [Id. at p. 158] And perhaps that explains FF’s need to find a purported ally in Brandeis.

Lewes was understandably skeptical: “I should not leave unquestioned any assumption that Justice Brandeis would in the end have disagreed with the Black view in Bridges if he had still been on the Court. No doubt fair trial was an important value for him, and he might well have been reluctant to limit the power of judges to punish comments threatening that fairness. But it is also true that Brandeis considered freedom of speech a positive good, and he made the case for that belief with compelling eloquence.” [Lewes, supra, at p. 245]

The battle between Black and Frankfurter continued for decades thereafter. Ultimately, however, the spirit of Brandeis’ free-speech jurisprudence pointed more towards Black’s expansive views than towards Frankfurter’s cramped ones. Perhaps that explains why Mr. Abrams began his book with an epigraph quote from Justice Black:

The very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.  

And to think that much of that heroic spirit traced back to Bridges . .  . first in Justice Edmonds’s dissent, then in the work done by Fraenkel  and Wirin, followed by the Black dissent that became a majority opinion, and ultimately capped by Tony Lewis’s revealing explanation of it all.

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FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

Justice Department targets Assange . . . & other leakers  Read More

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FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven Read More

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FAN 147.1 (First Amendment News) Music is their medium; the name is their message — The Slants perform @ Flying Dog Brewery

Text of the First Amendment above door in Flying Dog Brewery

The beer was flowing / the crowd was roaring/ the free-speech lawyers were showing / as the First Amendment Society (Erin Weston, Executive Director) brought The Slants to the Flying Dog Brewery in Frederick, MD. for a performance during the band’s East Coast tour. Flying Dog’s CEO Jim Caruso introduced The Slants.

Recall, this is the Asian rock-dance band whose case (Lee v. Tam) was argued before the Court on January 18, 2017. The issue is whether the disparagement provision of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

The band, the amicus lawyer (Ilya Shapiro) & the brewer (Jim Caruso)

The Slants were in fine fighting form as they filtered their message through melodic modes mixed with razor-cut messages in Fight Back, one of the songs from their latest EP — The Band Who Must not be Named (In Music We Trust Records, 2017).

The Portland, Oregon synth-pop group melodiously veered through such free-speech anthems as their From the Heart:

Sorry if our note’s too sharp
Sorry if our voice’s too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

lead singer Ken Shima

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna get in our way

There’s no room
For your backwards feelings
And backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
Know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

First Amendment guys Bob Corn-Revere & Ilya Shapiro

So sorry if you take offense
But silence will not make make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backwards feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle 

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

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FAN 147 (First Amendment News) Was Justice Scalia a First Amendment free-speech originalist?

His originalism was selective . . . and essentially absent in his First Amendment free speech jurisprudence . . . .

Like a great majority of originalists, although he recognized the problems with applying originalism, in practice he seemed to practice law office history.

Scalia was not an historian . . . His originalist opinions were almost always one-dimensional . . .  David Dorsen 

When it came to freedom of expression under the First Amendment, was Justice Antonin Scalia’s jurisprudence grounded in originalism? Did his First Amendment opinions in the following Roberts Court cases and elsewhere reflect the originalist jurisprudence he made famous?

During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

  1. Davenport v. Washington Educ. Association (2007) (9-0)
  2. United States v. Williams (2008) (7-2)
  3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
  4. Brown v. Entertainment Merchants Association (2011) (7-2)
  5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

  1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
  2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
  3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

  1. McCullen v. Coakley (2014) (9-0)
  2. Doe v. Reed (2010) (8-1)
  3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
  4. Citizens United v. Federal Election Commission (2010) (5-4)

Justice Scalia & David Dorsen

How much did his originalist jurisprudence affect his thinking in those cases and others? Not much, says David Dorsen, author of The Unexpected Scalia: A Conservative Justice’s Liberal Opinions (Cambridge University Press, 2017).

In his latest book, Mr. Dorsen (who was a friend of the Justice) writes of Scalia’s “failure to look to the original understanding or meaning of many First Amendment issues ….” In a soon-to-be-posted interview I did with Mr. Dorsen for SCOTusblog, he added: “His originalist jurisprudence did have gaps. Perhaps the most important one was the freedom of speech (aside from pornography).”

Among other things, Dorsen argues that Scalia’s vote in Texas v. Johnson was inconsistent with his originalism: “No textual or historical evidence supports the contention that the society that adopted the First Amendment understood it to cover communicative activity like flag-burning. Symbolic expression, such as pictures and signs, were largely included, but that was it.”

“The distinction between content-based and content-neutral speech, the concepts of conduct as speech and fighting words, and the idea of conduct as protected speech are mid-to-late-twentieth century creations.”

Drawing on Professor Akhil Amar’s analysis, Dorsen maintains that Scalia’s opinion in R.A.V. v. City of St. Paul (1992) (cross burning) amounted to “‘an ambitious reconceptualization and synthesis of First Amendment doctrine.'”

Mr. Dorsen says more, much more, about Justice Scalia’s free-speech jurisprudence and originalism in his book, most of which highlights what Dorsen sees as the inconsistencies between the two.

 Again, more will be said on Justice Scalia’s originalism and textualism later this week in my SCOTUSblog Q&A with David Dorsen.

Related 

  1. Geoffrey Stone, Justice Scalia, Originalism and the First Amendment, Huffington Post, October 12, 2011
  2. FAN 7:  Justice Scalia & the First Amendment, March 19, 2014
  3. Gene Policinski, Justice Scalia: The 45 words — and original meaning — of the First Amendment, Newseum Institute, February 16, 2016
  4. Steven Heyman, Justice Scalia and the Transformation of First Amendment Jurisprudence, SCOTUS Now, February 27, 2016
  5. See Originalism and the First Amendment, Federalist Society Panel, Nov. 18, 2016 (Nadine Strossen, David Forte, & Bradford Clark)
  6. David Lat, Justice Scalia, Originalism, Free Speech And The First Amendment, Above the Law, November 22, 2016

Newseum Event: The President & the Press: The First Amendment in the First 100 Days

Today the Newseum is hosting a half-day forum that will explore the Trump administration’s relationship with the press in the critical first months. The program will be held at the Newseum and will feature one-on-one conversations, panel discussions and individual presentations.

Participants, including White House Press Secretary Sean Spicer and Counselor to the President Kellyanne Conway, will explore pertinent challenges to the First Amendment, a free press and protecting the free flow of information in a divided nation.

→ Live video feed here.

Guests include:

  • Jim Acosta, CNN
  • Mike Allen, Co-founder and Executive Editor, Axios
  • Bret Baier, Fox News
  • Carrie Budoff Brown, POLITICO
  • Kellyanne Conway, Counselor to the President
  • David Fahrenthold, The Washington Post
  • Ari Fleischer, former White House Press Secretary, George W. Bush
  • David Kirkpatrick, journalist and author of “The Facebook Effect: The Inside Story of the Company That Is Connecting the World”
  • Julie Pace, The Associated Press
  • Jennifer Palmieri, former White House Communications Director, President Barack Obama
  • Bob Schieffer, CBS News
  • Sean Spicer, White House Press Secretary
  • Charlie Spiering, Breitbart News
  • Brian Stelter, CNN
  • Greta Van Susteren, MSNBC
  • Cecilia Vega, ABC News
  • Glenn Thrush, The New York Times
  • Kristen Welker, NBC News
  • Michael Wolff, The Hollywood Reporter

Headline: “NRA Readies Next Attack Against The First Amendment” Read More

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FAN 146 (First Amendment News) Upcoming Conference: “Truth, Lies and the Constitution”

The Twenty-Fifth Annual Ira C. Rothgerber, Jr. Conference is sponsored by Colorado Law’s Byron R. White Center for the Study of American Constitutional Law. The annual event seeks to explore a broad range of issues related to law and lies. 

This year’s conference takes place on Friday, April 14 from 8:15 a.m. – 3:00 p.m. and is titled “Truth, Lies and the Constitution.” The event will be moderated by Professor Helen Norton.

Panel I: Lies, Law, and Public Policy

  1. “Sex, Lies, and Ultrasound” — Jessie Hill, Case Western Reserve University School of Law
  2. “Falsehoods and the Press” – Helen Norton, University of Colorado School of Law
  3. “Too Incredible to be Believed” — Catherine Ross, George Washington University Law School
  4. “Climate Change Denial, Citizen Competence and the First Amendment” — James Weinstein, Arizona State University Sandra Day O’Connor College of Law

Panel II:  Deception, Hypocrisy, and the Constitution

  1. “The Lie of the Supremacy Clause and the Dakota Access Pipeline” — Carla Fredericks, University of Colorado School of Law
  2. “Truth, Lies, and the Confrontation Clause” — Mark Spottswood, Florida State University College of Law
  3. “Free Speech Hypocrisy:  Campus Speech, Engagement and the Sub-legal First Amendment” — Christina Wells, University of Missouri School of Law

Panel III: The Diversity of Lies (and Other Forms of Deception): Legal Theory and Doctrine

  1. “Material Benefits, Cognizable Harms and the Scope of the Constitutional Protection for Lies” — Alan Chen & Justin Marceau, University of Denver Sturm College of Law
  2. “Categorizing Lies” — David Han, Pepperdine University School of Law
  3. “The Law of Deception: A Research Agenda” – Gregory Klass, Georgetown Law

→ For more information, please go here.

Look up, look around — ACLU launches multilingual ad campaign Read More

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FAN 145 (First Amendment News) David Cole: “Does anyone believe that the ‘free marketplace of ideas’ is functioning?”

In a recent issue of the New York Review of Books, the ACLU’s David Cole reviewed:

David Cole

“‘Civil liberties once were radical.’ So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, ” writes Cole. “By 1938,” he adds, “Roger Baldwin, the ACLU’s executive director, proclaimed that the ACLU had ‘no ‘isms’ to defend except the Bill of Rights.’ The ACLU had shifted its focus from labor’s struggle for economic justice to a defense of the ‘neutral’ rights of speech and association, rights that could be invoked not just by individual workers and unions but by Henry Ford and big business. As Baldwin put it one year later, ‘We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.'”

“Sam Lebovic tells a related story in [his book]. In his account,” Cole notes, “American constitutional law has favored a classical liberal ‘freedom of the press,’ which stresses the importance of staving off state censorship, over ‘freedom of the news,’ a concept formulated by Franklin Delano Roosevelt, which envisions the state working proactively to ensure access to information against concentrated media ownership. Lebovic argues that the liberal conception of free speech and a free press, founded on the ‘free marketplace of ideas,’ is and always has been inadequate to address the threats to ‘freedom of the news,’ including not just the power of media moguls, but also the consequences of the Internet and the state’s over-reliance on secrecy.”

In a world where claims of “fake news” fill the airwaves, Cole asserts that “following Donald Trump’s election, on a campaign that relied on outright lies and stubborn denials of the truth, does anyone believe that the ‘free marketplace of ideas’ is functioning?” Then again, he stresses that “the inauguration of Donald Trump has dramatically reinforced the continuing importance of traditional core First Amendment rights.”

We are neither anti-labor nor pro-labor. With us it is just a question of  going wherever the Bill of Rights leads us. — Roger Baldwin (1940)

A new focus — look beyond the courts 

We were weened in an era when courts were often seen as the great defenders of equality. Even so, Cole invites his readers to reassess that reliance: “if we are to attain a more egalitarian exchange of ideas, it will be more likely through the political rather than the judicial branches.”

And as more and more liberals urge government intervention in the free speech arena, Cole counsels caution: “empowering the state to correct perceived deficiencies in the marketplace of ideas is a cure that is worse than the disease. ”

So what is the baseline for Cole’s conception of free speech?  “The best argument for protecting speech,” he stresses, “is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives. . . . [W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak.”

SPLC: Google, Hate Crimes, and Algorithms

In case you missed it, the Southern Poverty Law Center recently issued a story titled  Google and the Miseducation of Dylann RoofRecall, Roof was the man who murdered nine African Americans during a Bible study. How did Roof go from being someone who was not raised in a racist home to someone so steeped in white supremacist propaganda the man responsible for the massacre at the historic Emanuel A.M.E. Church in Charleston? Here is how the SPLC story answered that question:

“The answer lies, at least in part, in the way that fragile minds can be shaped by the algorithm that powers Google Search.

It lies in the way Google’s algorithm can promote false propaganda written by extremists at the expense of accurate information from reputable sources.

See SPLC video here

Roof’s radicalization began, as he later wrote in an online manifesto, when he typed the words “black on White crime” into Google and found what he described as “pages upon pages of these brutal black on White murders.”

SPLC President Richard Cohen

The first web pages he found were produced by the Council of Conservative Citizens, a crudely racist group that once called black people a “retrograde species of humanity.” Roof wrote that he has “never been the same since that day.” As he delved deeper, because of the way Google’s search algorithm worked, he was immersed in hate materials.

Google says its algorithm takes into account how trustworthy, reputable or authoritative a source is.

In Roof’s case, it clearly did not.”

Speaking this past Monday evening the George Washington University’s Lisner Auditorium, SPLC President Richard Cohen said that at first Google was reluctant to tweet its algorithms but apparently did so afterwards. Mr. Cohen said that a meeting has been set up between Google and representatives from the SPLC.

Story: “Amazon releases Echo data in murder case, dropping First Amendment argument” Read More

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FAN 144 (First Amendment News) Cert Petition: Nursing student challenges expulsion for Facebook comments

Craig Keefe (Credit: Brainerd Dispatch)

Seattle. The case is Keefe v. Adams. It involves Craig Keefe. According to a story by David Hanners in the Twin Cities Pioneer Press, Mr. Keefe was a “semester away from finishing his studies to be a registered nurse. Like a lot of college students — like a lot of Americans — he was on the social networking site Facebook. But in December, officials at Brainerd’s Central Lakes College took exception to some of Keefe’s posts on his private Facebook page and kicked him out of school.Keefe says he wasn’t told what the problems were with his posts, nor was he told why or how anything he did violated school policy. Angered, he has taken his complaint to court.”

See District Court opinion here and Eight Circuit opinion denying First Amendment & Due Process claims.

In a cert. petition recently filed with the Supreme Court, the issues raised were:

  1. May a public community college use professional conduct codes to expel a nursing student from a professional degree program, without regard to First Amendment limits, for comments unrelated to the school’s curriculum posted to the student’s personal Facebook page?
  2. May a public community college expel a student for disciplinary infractions using less rigorous due process procedures applicable to decisions involving curricular speech?

The brief, filed by Robert-Corn-Revere (with Ronald London & Lisa Zycherman), begins: “This case raises the question of whether the First Amendment permits a public college to expel a student from a professional degree program under nebulous standards, such as ‘maintaining professional boundaries,’ for posting non-curricular com- ments on his Facebook page. A divided panel of the Eighth Circuit said that it could, even though the student’s speech was not part of any coursework or clinical requirement.In reaching this conclusion, the panel expanded the limits of the ‘professional speech doctrine,’ which permits regulation only where the speech is directly related to specific professional duties.”

“It also exacerbated existing circuit splits that seek to define when off-campus speech may be subject to regulation, when speech may be considered to be ‘school-sponsored,’ and when adult college students may be subjected to the lesser First Amendment protections often provided elementary and secondary school children”

“In the process, the panel approved more lax due process procedures under the guise of a curricular expulsion, when the college instead was imposing a disciplinary sanction. The decision ignored this Court’s precedents, which require more formal due process procedures in the case of disciplinary sanctions, and created further disarray among the circuits on this issue. Review by this Court is necessary to clarify the First Amendment and due process principles involved.”

The Petitioner urges the Court to review the case for the following reasons:

I.      This Court’s Review is Essential to Clarify First Amendment Limits of Applying Professional Standards to Restrict Non-Curricular Speech by Public College Students

A. The First Amendment Protects College Students and Others Subject to Professional Codes of Conduct

B. The Eighth Circuit Blurred the Line Between Curricular and Non-Curricular Speech,Widening a Rift Among the Circuits

C. Review by This Court is Imperative

II.     This Court’s Review is Essential to Clarify Due Process for Disciplinary Sanctions on Non-Curricular Speech ata Public College.

SCOTUSblog: Justices skeptical about social media restrictions for sex offenders

David T. Goldberg (Counsel for Petitioner)

This from Amy Howe over at SCOTUSblog: “At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were ‘incredibly important parts’ of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even ‘structure their civil community life’ around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from ‘a very large part of the marketplace in ideas.’ Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.”

“. . . . And perhaps most critically for the state, Justice Anthony Kennedy was unconvinced by the state’s efforts to rely on a 1992 case in which the justices upheld a Tennessee law that imposed a ban on soliciting votes or distributing campaign materials within 100 feet of a polling place. The court in that case ruled that the ban served the state’s interest in protecting its citizens’ right to vote freely, but Kennedy today dismissed the Tennessee ban as “not analogous” to North Carolina’s. If that is the best you have, he seemed to be saying to Montgomery, ‘I think you lose.’ If Kennedy is indeed on board, then Packingham seems to have five votes in favor of striking down the North Carolina law.”

Transcript of oral arguments here.

See also, Ruthann Robson, Court Hears Oral Argument on Sex Offenders’ First Amendment Right to Access Social Media, Constitutional Law Prof Blog, Feb. 27, 2017

9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others

This from Just Security: Recently, “the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism—including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country.” Here is the lineup (go to link for comments):

  1. Robert Corn-Revere (Davis Wright Tremaine)
  2. Lucy Dalglish (U. MD. Journalism Dept.)
  3. Arthur Eisenberg (NYCLU)
  4. Jameel Jaffer (Knight First Amendment Institute, Columbia)
  5. Dawn Johnsen (Indiana U. Law School)
  6. Lee Levine (Levine Sullivan Koch & Schulz)
  7. Burt Neuborne (NYU Law School)
  8. David Schulz (Media Freedom & Information Access Clinic, Yale Law School)
  9. Laurence H. Tribe (Harvard Law School)

See video clip: Sean Spicer on Politico’s Playbook, Dec. 2016

NYU Center for the Humanities hosts event on Trump & First Amendment

February 22, 2017: The panelists discussed the history of freedom of speech and what the new administration means for First Amendment rights.

“The election of Donald Trump has come with a broad attack on the press and on the freedom of political expression. What are likely to be the challenges to the First Amendment going forward, and how does America’s history of robust dissent support the protection of speech and press today?”

The panelists were:

  • Floyd Abrams, Renowned First Amendment Attorney, Cahill Gordon & Reindel LLP; Author, The Soul of the First Amendment (forthcoming in April)
  • Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; President of the American Civil Liberties Union, 1991-2008;  Author, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights
  • Stephen Solomon, Associate Professor of Journalism, Arthur L. Carter Journalism Institute, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech
  • Thomas Healy, Professor of Law, Seton Hall Law School; Author, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

More on Trump & the First Amendment 

You know, they always bring up the First Amendment. I love the First Amendment; nobody loves the First Amendment better than me. Donald Trump

  1. Noah Feldman, Trump’s Love-Hate Relationship With the First Amendment, Bloomberg View, Feb. 27, 2017
  2. Debra Cassens Weiss, Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filed, ABAJ, Feb. 27, 2017
  3. Jonathan Kraut, Trump violates First Amendment, The Signal, Feb. 27, 2017
  4. Sue Lempert, Fake news and the First Amendment, The Daily Journal, Feb. 27, 2017
  5. Nate Madden, Trump’s Fighting the Media, not the First Amendment, Conservative Review, Feb. 27, 2017
  6. Trump Thinks First Amendment is a Joke, The Young Turks, Feb. 24, 2017 (YouTube)

Reporters Committee files brief opposing journalist’s subpoena in Malheur stand-off prosecution

Ariel B. Glickman | Reporter’s Privilege | News |  February 23, 2017

The Reporters Committee for Freedom of the Press filed an amicus brief opposing compelled testimony of John Sepulvado, a former reporter with Oregon Public Broadcasting (OPB), which was authorized by Attorney General Jeff Sessions in his first week in office. Sepulvado had interviewed Ryan Bundy, one of the Malheur Natural Wildlife Refuge occupants, about the purpose of the occupation in January 2016.

Though there had been earlier contacts from prosecutors, a subpoena was finally served on Sepulvado last week. The subpoena does not limit the scope of the requested testimony. The government seeks to have Sepulvado authenticate his interview of Bundy, which would also open Sepulvado up to vigorous cross-examination by the defendants, all of whom oppose the subpoena.

Sepulvado’s attorney filed a motion to quash the subpoena this week. In its brief in support of that effort, the Reporters Committee noted the jurisdiction’s long history of maintaining the confidentiality of journalists’ work product and the importance of an independent press to an informed public. The brief highlights the chilling effect that compelled testimony of confidential newsgathering information would have on future sources, and how that would affect deeply-researched stories.

Michigan State to Ban White Boards From Dorms Read More

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FAN 143 (First Amendment News) The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch  

A 1990 Harvard yearbook shows Neil Gorsuch, second row from the top on the left.

Vancouver, Canada. Neil Gorsuch clerked for Justice Anthony Kennedy (earlier for Justice Byron White) during the 1993-1994 Court Term.

In that Term the Court decided Turner Broadcasting System, Inc. v. FCC (June 27, 1994). Justice Kennedy wrote the majority opinion in Turner. The issue in Turner was whether the Cable Television Consumer Protection and Competition Act’s “must carry” rules violated the First Amendment. On that score, Justice Kennedy’s opinion stressed, among other things, that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Thus, “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”

Of course, we do not know what, if any, involvement young Gorsuch might have had in the case as one of Justice Kennedy’s law clerks.  What we do know, however, is that dating back to his college days at Columbia, Neil Gorsuch had an abiding interest in the First Amendment. (Professor Eugene Volokh clerked at the Court that same Term; he worked for Justice Sandra Day O’Connor.)

Commentaries 

  • In a 1994 law review article, Professors Monroe Price and Donald Hawthorne wrote: “Driven by its fixation on content-neutrality, the Turner Broadcasting Court, far from recognizing the importance of the distinction between commercial and non-commercial broadcasters, deemed it immaterial and practically non-existent. . . . We suggest that Justice Kennedy’s rigid doctrinal approach can potentially endanger all substantive government regulation of the electrnic media, especially measures designed to aid non-commercial programmers.”
  • “The Court in Turner,” wrote Henry Geller,  “determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems . . . come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O’Brien standard when the regulation is content-neutral.”
  • Robert Corn-Revere, who wrote on the case in 1994, noted that the “debate in Turner Broadcasting regarding the applicable First Amendment standard for cable television brought to a head an ongoing dispute of the past two decades.” Analyzing the opinion, he added that Turner “did not end the debate, [but] may mark a judicial shift toward a more traditionalist approach to electronic means of communication.” That shift came a few years later in United States v. Playboy Entertainment Group, Inc., which Corn-Revere argued. The Turner case formed a key part of Playboy’s opposition to the government’s claim that broadcast indecency standards should be applied to cable.  The Court agreed with Playboy’s position and struck down the law (Section 505 of the Telecommunications Act of 1996), focusing on the technological difference “between cable television and the broadcasting media, which is the point on which this case turns.” 

* ** * * 

 See also: FAN, #141: Judge Neil Gorsuch — the Scholarly First Amendment Jurist

→ Alex J. Harris, who clerked for Judge Gorsuch on the 10th Circuit, is now clerking for Justice Kemmedy.

Senate Judiciary Committee Members 

The Senate Judiciary Committee’s hearings on Judge Gorsuch are set for Monday, March 20th. Senator Chuck Grassley (R-Iowa) chairs the Committee. Those on the committee are:

Republicans (11): Orrin G. Hatch, Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Feff Flake, Mike Crapo, Tom Tills, & John Kennedy.

Democrats (9): Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher A. Coons, Richard Blumenthal  & Mazie Hirono

Tomorrow in LA: First Amendment Salon on Judge Gorsuch & the First Amendment

Jim Newton of the LA Times

It will the twelfth First Amendment Salon and the first one of 2017; it will address the topic of Judge Neil Gorsuch and freedom of expression.  The salon dialoge will feature Jim Newton (acclaimed author & editor, editorial page, L.A. Times) interviewing Eugene Volokh (noted First Amendment scholar and Gary T. Schwartz Distinguished Professor of Law, UCLA). Kelli Sager (First Amendment specialist & partner, Davis Wright Tremaine) will introduce the discussants.

Tomorrow’s salon will take place at the Los Angeles offices of Davis Wright Tremaine. As always, the salon is co-hosted by Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Live webcasts will be to the D.C. and New York offices of Davis Wright Tremaine with the video of the event to be posted soon on FIRE’s online First Amendment Library (see additional links to the salons below)

Call for Proposals: FIRE’s 2017 Faculty Conference (travel, lodging  & honoraria) Read More

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FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule

 

Paul Gerlich & Erin Furleigh (credit: FIRE)

Seattle. “Then-students Paul Gerlich and Erin Furleigh were officers with Iowa State University’s chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) when they filed their lawsuit in July 2014, through the Foundation for Individual Rights in Education’s (FIRE’sStand Up For Speech Litigation Project. The group had multiple T-shirt designs rejected by the university and was subject to unusually heavy, politically motivated scrutiny when applying to use ISU logos under the school’s trademark policy.”

Yesterday, “the Eighth Circuit held that ISU administrators had engaged in unconstitutional viewpoint discrimination, violating Furleigh and Gerlich’s First Amendment rights.” (FIRE press release)

The case is Gerlich v. Leath, which was handed down by a three-judge panel of Eight Circuit. The opinion for the court was written by Judge Diana E. Murphy. Here is how it opens:

Judge Diana Murphy

“Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws had several of its trademark licensing requests denied because its designs included a cannabis leaf. Two members of the student group subsequently filed this 42 U.S.C. § 1983 action, alleging various violations of their First and Fourteenth Amendment rights. The district court granted plaintiffs’ summary judgment motion in part and entered a permanent injunction against defendants. Defendants appeal, and we affirm.”

In deciding the case, the court ruled that the ISU NORML chapter had Article III standing to sue under both Rosenberger v. Rector & Visitors of Univ. of Va. (1995) and Widmar v. Vincent (1981).

The court held that the government cannot grant or withhold government benefits based on officials’ political preferences — including use of trademarks. It drew a clear line against expansion of the “government speech” doctrine to matters involving student speech on university campuses. — Robert Corn-Revere (lead counsel for Plaintiffs)

Limited Public Forum Issue: The court then sustained the Plaintiffs’ motion for summary judgment on their as applied First Amendment challenge. In that regard, Judge Murphy noted: ‘If a state university creates a limited public forum for speech, it may not “discriminate against speech on the basis of its viewpoint.’ Rosenberger. A university ‘establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez (2010). A university’s student activity fund is an example of a limited public forum. See Rosenberger. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.”

Lisa Zycherman (one of Plaintiffs’ lawyers)

Viewpoint Discrimination: “The defendants’ rejection of NORML ISU’s designs,” she added, “discriminated against that group on the basis of the group’s viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is ‘the specific motivating ideology or the opinion or perspective of the speaker.’ Rosenberger.”

“. . . . The instant facts are somewhat similar to those in Gay & Lesbian Students Ass’n v. Gohn (8th Cir. 1988). In that case, the University of Arkansas made funding available to student groups but denied funding one advocating for gay and lesbian rights. We concluded that the university had engaged in viewpoint discrimination.  In reaching this conclusion our court relied on the fact that the university followed an unusual funding procedure that was specific to the gay and lesbian group, some of the decision makers ‘freely admitted that they voted against the group because of its views,” and ‘[u]iversity officials were feeling pressure from state legislators not to fund’ the group. Id.

The court rejected ISU’s denials that its actions were politically motivated. The court pointed to e-mail communications among school officials that showed they reacted within hours of receiving inquiries from legislative staff and political appointees. ISU’s President, Steven Leath, testified at his deposition that he was concerned about “political public relations implications” of the NORML ISU t-shirt designs, and “my experience would say in a state as conservative as Iowa on many issues, that [it] was going to be a problem.”  Leath also testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.”

Ronald London (one of Plaintiffs’ lawyers)

Government Speech Claim: Finally, the Court rejected ISU’s claims that the administration of the trademark licensing regime should be considered government speech. The government speech doctrine does not apply if a government entity has created a limited public forum for speech, wrote Judge Murphy relying on Pleasant Grove City. As noted above, she added, “ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.”

“Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. . . . [Even when analyzed under the three-factors announced in Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015), those] factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.”

Lawyers for the Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman.  Local counsel was Mike Giudicessi.

Three of Professor Eugene Volokh’s students — Ian Daily, Eric Sefton and Sydney Sherman — and Volokh filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

Headline: “Breitbart’s Milo Yiannopoulos inspires Tennessee ‘free speech’ bill” Read More