Category: First Amendment

0

How an Anarchist Changed Oliver Wendell Holmes’s Future

FullSizeRender

Seattle, WA: Last evening I joined David Skover to see (yet again) Stephen Sondheim‘s dark musical, Assassins. Afterwards, I turned to David and said: “Well, not all of those assassinations proved for the worst. Holmes, after all, owed a debt to the anarchist who murdered President McKinley.” So here is a page from that story, the true one that is.  

* * * *

Leon Czolgosz

Leon Czolgosz

September 6, 1901 is one of the most important dates in American constitutional history, though few think of it as such. On that day Leon Czolgosz attempted to assassinate President William McKinley at the Pan-American Exposition in Buffalo, New York. Though the President would live several more days, the two shots the anarchist fired ultimately killed McKinley (he died on September 14th) and thereby put in motion a string of events that led to Oliver Wendell Holmes, Jr. becoming the fifty-eighth Justice on the Supreme Court.

But for the death of the President, the seat to be vacated by Justice Horace Gray would not have gone to then Chief Justice Holmes of the Massachusetts Supreme Judicial Court. No — President McKinley had other plans. Here’s what those plans were:

As the summer of 1901 wound down, it became apparent to McKinley and others that Justice Gray was ill and was likely to retire soon. So the President turned to his friend John Davis Long, then Secretary of the Navy, for advice. Though Long had nominated Holmes to the Massachusetts bench when he was governor, he did not recommend him for the U.S. Supreme Court. Instead, Long urged the president to select Alfred Hemenway, his law partner.  And Hemenway was prepared to accept the position if and when offered.

As it turned out, however, Horace’s delay in retiring combined with McKinley’s assassination changed everything. Thereafter, Henry Cabot Lodge, a U.S. senator from Massachusetts and one of Theodore Roosevelt’s close friends, recommend Holmes for Gray’s seat when the ailing Justice stepped down in July 1902. Roosevelt acted on Lodge’s suggestion and nominated Holmes. By December the Senate confirmed him, unanimously.

As ironic as it was, Oliver Wendell Holmes owed his justiceship to a crazed anarchist.

stairway-to-heaven-1319562-m-720x340
0

FAN 104 (First Amendment News) Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center

 “Being bruced” means being prosecuted or harassed for speaking freely, for expressing unpopular ideas, or for breaking taboos. To be “bruced” is to be silenced for exercising one’s First Amendment rights. The expression  derives from Lenny Bruce’s free-speech encounters with the law.

Lenny Bruce, the ribald comic and free-speech hero, returns to life this evening for an 8:30 performance at the National Constitution Center in Philadelphia. Mr. Bruce, who inspired a generation of uninhibited comics, was charged with speech crimes for his comedic performances in Los Angeles, San Francisco, Chicago, and New York. In 2003, New York Governor George Pataki posthumously pardoned Mr. Bruce for his 1964 obscenity conviction.

Lenny Bruce

Lenny Bruce (1925-1966)

This evening’s performance (Can We Take a Joke?) is being supported by FIRE to celebrate “Freedom Day.”

Can We Take a Joke? is a documentary about the threats that outrage culture poses to comedy and free speech, featuring interviews with comedians such as Adam Carolla, Gilbert GottfriedLisa Lampanelli, Heather McDonaldPenn Jillette, and more.

FIRE partnered with the DKT Liberty Project and director Ted Balaker of Korchula Productions to produce Can We Take a Joke? Due for release this fall, the documentary explores many topics and cases, including the case of student Chris Lee, whose satirical play Passion of the Musical was disrupted by a group of students who had been organized by Washington State University administrators. It will also include interviews with FIRE President and CEO Greg Lukianoff, long-time FIRE friend and Brookings Institution scholar Jonathan Rauch, and Stand Up For Speech Litigation Project attorney Robert Corn-Revere, who was lead counsel in the petition to posthumously pardon Lenny Bruce.

Many of us lament the fact that college and high school students today don’t seem to appreciate freedom of speech as much as they should. This suspicion, unfortunately, pans out in recent surveys of millennials and generation Y. But rather than blaming the students, we should understand that we as a society have not been doing a very good job of educating students about the importance of freedom of speech. I try to do this in my writing, and FIRE is always trying to reach new audiences, but we realized many years ago that perhaps the best way to reach the largest possible audience is to remind students that comedy is impossible without freedom of speech. As I’ve said many times, you can either have a right not to be offended or you have good comedy, but you can’t have both. Can We Take A Joke? isn’t for everybody, but I think it will really connect with people who never really thought much about freedom of speech and how much we rely on it in every facet of our lives. — Greg Lukianoff (executive producer)

→ See Reason TV: Nick Gillespie interviews Greg Lukianoff re documentary.

If you’re a college student, there’s still time for you to apply for free exclusive screening rights to show the documentary on your campus between April 13th and April 20th. The deadline is fast approaching, however, so make sure to apply ASAP.

→ Related: Ronald Collins & David Skover, The Trials of Lenny Bruce: The Fall & Rise of an American Icon (Kindle edition, 2012) (see here also)

Full disclosure: I am a consultant to FIRE and likewise appear in the Can We Take a Joke? documentary.

* * * *

Headline: Westboro Baptist Church counter-protesters who flew American flags found guilty of picketing church Read More

3

Viewpoint Discrimination in IP

Here’s a question that came up in a panel that I was on last week on some intellectual property issues. Suppose somebody makes a movie that contains completely loathsome content.  Let’s say the film seeks to justify racism, sexism, or you-name-it ism.  I would venture to say that nobody would argue that the creators of such a movie could be denied a copyright in their work.  That’s true even for child pornography, though there the copyright would be of little or no value because distribution or possession is a crime.

Why, then, does federal trademark law permit the PTO or a court to refuse or invalidate a registration on the grounds that the mark is equally offensive?  The Federal Circuit en banc recently held in In re Tam that this authority was unconstitutional, and I suspect that the Supreme Court will take this case and affirm.  But I’m curious to hear what the counterargument is? Are marks different from copyrights for purposes of First Amendment analysis?

stairway-to-heaven-1319562-m-720x340
2

FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

Unknown-1

Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More

7

FAN 102.3 (First Amendment News) Court Denies Review in Campaign Finance Case

Today the Court issued its orders list in which the Justices declined to hear the case of Justice v. Hoseman.

The issue in the case was whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.

The cert. petition was filed by the Institute for Justice with Paul Avelar as counsel of record for the Petitioners.

The Center for Competitive Politics (Allen Dickerson), the Cato Institute (Ilya Shapiro), and the Independence Institute filed an amicus brief on behalf of the Petitioners.

* * * *

The Court also denied review in a First Amendment related caseStackhouse v. Colorado (see below)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Town of Mocksville v. Hunter
  6. Miller v. Federal Election Commission
  7. Sun-Times Media, LLC v. Dahlstrom
  8. Rubin v. Padilla
  9. Hines v. Alldredge
  10. Yamada v. Snipes
  11. Center for Competitive Politics v. Harris
  12. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on April 15, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

0

FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

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

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
0

FAN 102.1 (First Amendment News) Laurence Tribe Petitions Court in Defamation Case

The case is Scholz v. DelpThe issue raised in it is whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action. The state court judgment below was in favor the First Amendment claim.

Harvard Law Professor Laurence Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe begins his brief my stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

Professor Laurence Tribe

Professor Laurence Tribe

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

The the three arguments advanced by Professor Tribe in his cert. petition are:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closes his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

 Response due April 4, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Justice v. Hosemann 
  3. Cressman v. Thompson
  4. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

→ The Court’s next Conference is on March 25, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

0

FAN (First Amendment News, Special Series) Newseum Institute to Host Event on Cell Phone Privacy vs National Security Controversy

images

Starting today and continuing through mid-June, I will post a special series of occasional blogs related to the Apple iPhone national security controversy and the ongoing debate surrounding it, even after the FBI gained access to the phone used by the terrorist gunman in the December shooting in San Bernardino, California.

Gene Policinski

Gene Policinski

This special series is done in conjunction with the Newseum Institute and a major program the Institute will host on June 15, 2016 in Washington, D.C.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

The June 15th event will be a moot court with seven Supreme Court Justices and two counsel for each side. The focus will be on the First Amendment issues raised in the case. (See below re links to the relevant legal documents).

→ Save the Date: Wednesday, June 15, 2016 @ 2:00 p.m., Newseum, Washington, D.C. (more info forthcoming).

The Apple-FBI clash was the first significant skirmish — and probably not much more than that — of the Digital Age conflicts we’re going to see in this century around First Amendment freedoms, privacy, data aggregation and use, and even the extent of religious liberty. As much as the eventual outcome, we need to get the tone right, from the start — freedom over simple fear. –Gene Policinski

Newseum Institute Moot Court Event

It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails.Melanie Newman (spokeswoman for Justice Department, 3-28-16)

As of this date, the following people have kindly agreed to participate as Justices for a seven-member Court:

The following two lawyers have kindly agreed to serve as the counsel (2 of 4) who will argue the matter:

→ Two additional Counsel to be selected.  

Nan Mooney and I will say more about both the controversy and the upcoming event in the weeks ahead in a series of special editions of FAN. Meanwhile, below is some relevant information, which will be updated regularly.

Apple vs FBI Director James Comey

President Obama’s Statement

Congressional Hearing

Documents

Screen Shot 2016-03-17 at 10.46.11 PM

Last Court Hearing: 22 March 2016, before Judge Sheri Pym

Podcast

Video

News Stories & Op-Eds

lockediphone5c

  1. Pierre Thomas & Mike Levine, “How the FBI Cracked the iPhone Encryption and Averted a Legal Showdown With Apple,” ABC News, March 29, 2016
  2. Bruce Schneier, “Your iPhone just got less secure. Blame the FBI,” Washington Post, March 29, 2016
  3. Katie Benner & Eric Lichtblau, “U.S. Says It Has Unlocked Phone Without Help From Apple,” New York Times, March 8, 2016
  4. John Markoff, Katie Benner & Brian Chen, “Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist,” New York Times, March 17, 2016
  5. Jesse Jackson, “Apple Is on the Side of Civil Rights,” Time, March 17, 2016
  6. Katie Benner & Eric Lichtblau, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” New York Times, March 15, 2016
  7. Kim Zetter, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” Wired, March 15, 2016
  8. Alina Selyukh, “Apple On FBI iPhone Request: ‘The Founders Would Be Appalled,‘” NPR, March 15, 2016
  9. Howard Mintz, “Apple takes last shot at FBI’s case in iPhone battle,” San Jose Mercury News, March 15, 2016
  10. Russell Brandom & Colin Lecher, “Apple says the Justice Department is using the law as an ‘all-powerful magic wand‘,” The Verge, March 15, 2016
  11. Adam Segal & Alex Grigsby, “3 ways to break the Apple-FBI encryption deadlock,” Washington Post, March 14, 2016
  12. Seung Lee, “Former White House Official Says NSA Could Have Cracked Apple-FBI iPhone Already,” Newsweek, March 14, 2016
  13. Tim Bajarin, “The FBI’s Fight With Apple Could Backfire,” PC, March 14, 2016
  14. Alina Selyukh, “U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns ‘A Diversion’,” NPR, March 10, 2016
  15. Dan Levine, “San Bernardino victims to oppose Apple on iPhone encryption,” Reuters, Feb. 22, 2016
  16. Apple, The FBI And iPhone Encryption: A Look At What’s At Stake,” NPR, Feb. 17, 2016
stairway-to-heaven-1319562-m-720x340
0

FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

0

FAN 101.3 (First Amendment News) Supreme Court Denies Review in Right of Publicity Case

In its order list today, the Supreme Court denied review in Electronic Arts, Inc. v. Davis. The issue in the case was whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.

See FAN 83: “Paul Smith Files Cert. Petition in Right of Publicity Case” (Nov. 4, 2016)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 25, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.