Category: General Law

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Justice Kennedy Really Screwed Up

First, he waited until the last day of the Term to announce his retirement. This shortened the timeframe for deliberating on a Supreme Court nomination and for vetting a nominee.

Second, he retired effective July 31, 2018. Thus, we now again face the prospect of a shorthanded Supreme Court, maybe for two years or more.

Alas.

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FAN 200 (First Amendment News) Special 200th Issue: 15 Women & Their Views on Free Speech

To commemorate the 200th issue of First Amendment News, I invited women from various professions (lawyers, law professors, and a journalism professor) to draft original essays on any aspect of free speech law. Why only women? Fair question. My answer has to do with the fact, as I perceive it, that by-and-large those who receive the most attention in the First Amendment arena are men. I leave it to others to explain if and why that might be so — some of the contributors to this symposium do just that. However that may be, of this I can say with a good measure of certainty: the essays that follow are diverse, thoughtful, somtimes provocative, original, and often mind-opening.  I extend my thanks to the 15 contributors for their sympsoium essays and to Kellye Testy for kindly agreeing to write the Foreword.  

→ Related: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018 (Aug. 7, 2018)      

→ With this issue First Amendment News ends its long and rewarding affiliation with Concurring Opinions. I want to thank my colleagues here for their valuable and generous support. I especially want to thank Professor Dan Solove who years ago dared to invite me to be a part of his team. Happily, Dan and his colleagues have agreed to allow me to continue to contribute to Concurring Opinions.

Starting sometime in October, FAN’s new host will be the Foundation for Individual Rights in Education (FIRE). Among other things, you can expect more news along with a variety of digital improvements. From time to time, FAN will also host or co-host live and online symposia and may even conduct a study or two. One thing will, however, remain constant: my commitment to being a fair broker of content. So stay tuned — some of the best is yet to come. — RKLC    

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Foreword

Kellye Testy, “Prior Restraint: Women’s Voices and the First Amendment

15 Contributors  

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder

Mary Anne Franks, “The Free Speech Fraternity

Sarah C. Haan, “Facebook and the Identity Business

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra

Ruthann Robson, “The Cyber Company Town

Kelli Sager& Selina MacLaren, First Amendment Rights of Access

Sonja West, “President Trump and the Press Clause: A Cautionary Tale

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FAN 200 (First Amendment News) Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Helen Norton is Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado Law School. Professor Norton’s scholarly and teaching interests include constitutional law, civil rights, and employment discrimination.  Two of her more recent publications are: “The Government’s Manufacture of Doubt,” 16 First Am. L. Rev. 342 (2018) and “The Government’s Lies and the Press Clause,” 89 U. Colo. L. Rev. 453 (2018).

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Let’s say you’ve learned that you’re 10 weeks pregnant.

Professor Helen Norton

You may have several children already, or none. You may be a teenager or you may be in your 40s. You may have a job–or maybe you just lost one. You may or may not be married. You may have health insurance; you may not. You may know that you don’t want an abortion. You may know that you do. You may be unsure. In any event, you are now considering your next steps.

Turns out that many folks have something to say to you about what you should do next. What do you want from those speakers? If you’re like many (if not most), you want accurate information that informs, but does not coerce, your decision-making. You don’t want to be lied to, you don’t want relevant information withheld from you, and you don’t want to be bullied. Here, then, you probably want to know the risks and benefits of your options, their costs, and the qualifications of the folks offering to serve you. You probably want to know what services are available from other sources, and at what cost.

For these reasons, California, like a number of other jurisdictions, required facilities that seek to serve pregnant women to disclose certain information to those women. First, it required those facilities licensed under state law to provide women with notice that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” This tells women about additional options, and their cost. Second, the state required unlicensed facilities to notify women that “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” This tells women about the qualifications of those seeking to serve them.

But last June a 5-4 Supreme Court preliminarily enjoined California’s law, holding that it likely violated the free speech rights of crisis pregnancy centers, organizations often affiliated with or operated by those opposing abortion. Most, if not all, of these centers do not offer referrals or any other services related to birth control or abortion, and many have no professional health care providers on staff. In so holding, the Court ignored what women as listeners would find helpful in making important decisions about their health and lives. Focusing instead on the centers as speakersand what they do and don’t want to say to the pregnant women they seek to influence, the Court demonstrated its continuing failure to protect listeners’ autonomy, enlightenment, and self-governance interests – values at the heart of the Free Speech Clause.

As I explain in more detail in a forthcoming essay, the Court need not, and should not, have done so. In certain settings, law sometimes puts listenersfirst when their First Amendment interests collide with those of speakers. And collide they often do. Sometimes speakers prefer to tell lies when their listeners long for the truth. Sometimes listeners hope that speakers will reveal their secrets, while speakers resist disclosure. And at other times, speakers seek to address certain listeners when listeners wish simply to be left alone. When speakers’ and listeners’ First Amendment interests conflict, whose should prevail?

(credit: Gavin Ortlund)

A “listener-centered” approach to certain free speech problems outside of public discourse understands the First Amendment to permit the government to regulate the speech of comparatively knowledgeable or powerful speakers when that expression frustrates their listeners’ interests. (“Public discourse” involves the universe of speech key to democratic self-governance like campaign and other political speech, where courts have historically privileged speakers’ autonomy interests in saying what they want to say.)

Why put listeners first in environments of expressive inequality? When speakers enjoy certain advantages of information or power over their listeners, they can mislead or muscle their listeners in ways that strike us as unfair and sometimes dangerous. When we take seriously the First Amendment interests of listeners who suffer disadvantages of information or power in these relationships, we improve the quality of the communicative discourse. We also recognize listeners as ends in themselves–rather than as mere means through which speakers seek to achieve their own ends.

And a listener-centered approach still leaves those speakers free to make a wide range of expressive choices: it does not force speakers to mouth opinions that they don’t hold, nor does it prohibit them from sharing their opinions or additional accurate information of their choosing in non-coercive settings

Consider the following clashes between speakers’ and listeners’ First Amendment interests:

Lies often advance the speaker’s autonomy interests in saying what he wants to say at the expense of his listeners’ interests in receiving accurate information to inform their decision-making. A listener-centered resolution of this conflict understands the First Amendment to allow the government to require comparatively knowledgeable or powerful speakers to tell the truth when they choose to speak on certain matters even if they would prefer to dissemble. For this reason, law generally requires commercial actors to speak accurately when they extol their products’ attributes to consumers, professionals to accurately list the risks of their recommended course of action, to their patients and clients, and a corporation’s leaders to portray its economic situation truthfully when describing its prospects to shareholders.

A knowledgeable speaker’s secrets and non-disclosures can also threaten listeners’ interests while enhancing his own. A listener-centered approach understands the First Amendment to permit the government to require comparatively knowledgeable and powerful speakers to make accurate disclosures about issues material to listeners’ decision-making, even if those speakers would prefer not to. Think, for example, of the government’s requirements that commercial speakers affirmatively disclose the health or safety dangers posed by their products.

The Supreme Court’s traditional commercial speech doctrine long exemplified a listener-centered approach. In a setting where commercial actors hold more information about their goods and services than their consumers, the Court interpreted the First Amendment to permit the government to regulate commercial speech that frustrates listeners’ interests while protectingcommercial speech that serves them. The Court thus treats commercial speech that is false, misleading, or related to illegal activity (like advertisements for illegal drugs) as entirely unprotected because listeners have no constitutionally protected interest in receiving that information. At the same time, the Court generally protects truthful and non-misleading commercial speech from government regulation because that expression can provide great value to consumers’ decisionmaking. For instance, the Court has applied intermediate scrutiny to strike down laws prohibiting sellers from publishing accurate information about legal products or services, like the price of prescription drugs or the alcohol strength of beer.

The professional speech setting also shows how law can serve listeners’ First Amendment interests sometimes by protecting expression from the government’s regulation, and at other times by regulating it to ensure its trustworthiness and thus its value to listeners. We support listeners’ interests in quality professional advice when we interpret the First Amendment to protect lawyers’ and doctors’ speech from governmental restrictions that are inconsistent with professional standards – like the federal law that forbade federally-funded legal services lawyers from representing clients challenging welfare law even though professional standards generally require lawyers vigorously to pursue their client’s plausible claims.

Then there is the Florida law that banned doctors’ discussions of gun safety with their patients even when professional standards encourage such conversations to prevent accidental injuries. At the same time, we also promote listeners’ interests in quality professional advice when we understand the First Amendment to permit the government to regulate professionals’ speech to ensure its trustworthiness. Examples include professional responsibility rules that regulate professionals’ speech to protect clients’ interests, such as those that require lawyers to disclose potential conflicts of interest and that prohibit lawyers from knowingly making false statements of material fact or law.

Here I’ve discussed the value of a listener-centered approach to certain free speech problems in several settings: commercial, professional, and reproductive health care (and elsewhere I’ve also explored a listener-centered approach to workplace speech). All involve offers or exchanges outside of public discourse where the speaker has more information (and sometimes power) than his listeners. In each of them, the speaker seeks to shape his listeners’ choices in his preferred direction: to persuade them to buy what he’s selling; to settle rather than sue or to wait rather than operate (or vice versa); or to continue a pregnancy. All involve the speaker’s delivery of information that is objectively verifiable: the attributes of a particular product; the professional consensus about a course of medical treatment or legal action; and the existence and extent of available reproductive health care services. And all involve listeners who are making decisions (often life-shaping decisions) about their own property or health. When we take the side of listeners in these relationships, we promote their First Amendment interests by enabling them to receive accurate information that informs, but does not coerce, their decision-making.

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FAN 200 (First Amendment News) Sonja R. West, “President Trump and the Press Clause: A Cautionary Tale”

Sonja R. West is the Otis Brumby Distinguished Professor in First Amendment Law at the University of Georgia School of Law. Her post is shared by the Law School and the Grady College of Journalism and Mass Communication. Professor West specializes in constitutional law, media law and the U.S. Supreme Court. Two of her more recent publications are: “Suing The President For First Amendment Violations,” 71 Okla. L. Rev. 321 (2018) and “Favoring the Press,” 106 Calif L. Rev. 91 (2018).

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Professor Sonja R. West

President Trump is waging a self-declared “running war” with the press, prompting an abundance of analysis from journalists and scholars alike. Faced with attacks of being “fake news” and “the enemy of the people,” the news media are sounding the alarms about troubling issues like decaying norms, dwindling public trust and even incitements to violence.

Thanks to his administration’s open hostility toward the press, however, Trump is also exposing a very different, and rarely discussed, vulnerability of the modern news media: The United States Supreme Court’s failure to adequately protect the press under the First Amendment.

When it comes to constitutional rights and protections for the press, the Supreme Court has long adopted a two-sided approach. On the one hand, the Court routinely speaks—often in quite eloquent terms—about the vital role the press plays in our democracy. Yet, on the other hand, it consistently refuses to recognize any unique First Amendment safeguards that would support the press in this work.

Once they publish or broadcast their stories, of course, members of the press enjoy the same robust rights as everyone else under the Speech Clause. But the First Amendment also secures separate protection for the freedom of the press. This express guarantee raises the question of whether issues affecting the press should ever merit special constitutional consideration. The Court has been steadfast in its insistence that the answer is no.

In several articles, I have criticized the Court’s First Amendment jurisprudence for focusing all its attention on the Speech Clause, while virtually ignoring the Press Clause. This failure by the Court to recognize the unique constitutional status of the press flies in the face of the document’s text and history. In fact, the historical evidence shows that the founding generation believed a free press to be of heightened constitutional importance—surpassing even that of individual speech rights.

The framers particularly valued the structural role that the press plays in our democracy. A free press, they contended, serves as a check on government tyranny and informs the public of newsworthy matters. While the Court has acknowledged these important press functions in passing, it has nonetheless declined to identify any concrete rights that would support this work. It, instead, has decided to lump all speakers together and protect them almost entirely through the Speech Clause. This has left the press without key protections, particularly in the area of newsgathering. The Court’s all-speakers-equal approach not only fails to provide the press with distinct constitutional rights, but, as I argue in my most recent piece, it potentially threatens even legislatively granted press protections. (Oh, and since you asked, yes, it is possible for the Court to define the press.)

This brings us to President Trump. While the Court’s abandonment of the Press Clause long predates the Trump Administration, recent events are shining a spotlight on the consequences of the Court’s decisions. Among the most concerning issues are rights of access, legal defenses against government searches and subpoenas, and protection from criminal prosecution.

The Court loves to extol the vital role of the press as government watchdog. Members of the press, the Court tells us, serve as “surrogates for” and “the eyes and ears of” a public that has “limited time and resources with which to observe at first hand the operations of [its] government.” In order to inform the public about “what their government is up to,” the press often needs access to government places or information. Yet the Court has declared that the press has no right to “special access to information not shared by members of the public generally.”

President Trump (credit: NBC News)

Limitations on press access, of course, greatly hinder the ability of journalists to effectively monitor government actions. And while it can be difficult to assess the full effect of these restrictions, there are times when it is clear that the public is being kept in the dark about serious matters. We have seen this recently in the controversy surrounding the detention of migrant families. The Trump Administration has strictly limited access to these detention centers. Thanks to the Court, of course, the news media has no claim to a constitutional right of access. This leaves the American public to debate these policies without any images from independent photojournalists, forced instead to rely on only government-supplied photos. Similarly, it has been unclear whether journalists have any constitutional arguments when they have been selectively banned from the president’s meetings with foreign leaders, White House press briefings and events, and a national summit involving the Environmental Protection Agency. One reporter was even physically pinned against the wall after trying to ask a federal agency official a question. The problem here is evident, because if the press can’t ask questions then the public doesn’t get answers.

Another crucial way that members of the press are different from other types of speakers is their increased interest in safeguarding their newsgathering processes and confidential sources. The Court has acknowledged the issue, admitting that “without some protection for seeking out the news, freedom of the press could be eviscerated.” But the Court, nonetheless, has refused to recognize First Amendment defenses for reporters from government searches and subpoenas.

The dangers of the Court’s failure to protect journalists from government surveillance began coming to light even before Trump took office. The news media strongly criticized the Obama Administration for seizing the phone records of twenty Associated Press reporters; monitoring the activities, phone calls and personal emails of Fox News’s James Rosen; and waging a years-long campaign to force a Pulitzer Prize winning New York Timesreporter to reveal his confidential source. In response to pushback from the press, Obama’s Department of Justice ultimately strengthened its internal guidelines regarding the news media.

The problem, however, is that self-imposed guidelines do not have the strength of constitutional (or even statutory) protections, and they were quickly called into question by Trump’s Attorney General, Jeff Sessions. It was thus not a surprise when, earlier this summer, the news broke that Trump’s Department of Justice had seized a year’s worth of New York Times reporter Ali Watkins’ emails and phone records. And, as Trevor Timm wrote in the Columbia Journalism Review, this is likely just the beginning, because “[w]ith three other, unidentified reporters mentioned in court documents related to the leak case Watkins is ensnared in, and dozens of other similar investigations going on as we speak, it’s anyone’s guess how many journalists the Trump administration is currently spying on.”

Finally, and most seriously, members of the press are unique in the threat they face of criminal prosecution. The very nature of newsgathering often means that journalists are on the frontlines of volatile situations. Likewise, their role as “a powerful antidote to any abuses of power by government officials” frequently makes them the special target of government ire. The Court has acknowledged this heightened risk, noting that the use of prosecutions for criminal libel was a key part of the “history of conflict between the Crown and the press.” Yet the Court’s one-size-fits-all view of the First Amendment suggests that journalists who are arrested while engaged in an act of newsgathering or reporting are, as a matter of constitutional law, viewed no differently than any other speaker. Such an approach belies the history of press liberty in our country and leaves the press particularly vulnerable to government abuse.

We can again thank the Obama Administration for setting a dangerous example in this area. In 2010, it took the unprecedented step of naming Fox News’s Rosen as “an aider/abettor and/or co-conspirator” under the Espionage Act for his newsgathering efforts to obtain classified information.

There has been no criminal prosecution against a reporter during Trump’s presidency. Yet. But shortly after his inauguration, he did tell then-FBI Director James Comey to consider putting journalists in prison for publishing classified information. There was also a reporter arrested and criminally charged for shouting questions at a member of Trump’s cabinet. Another journalist was arrested while covering an immigration protest then detained by ICE and threatened with deportation. And nine journalists were arrested while covering Trump’s inauguration, including a photojournalist who was charged with eight federal felonies and faced up to 60 years in prison. In all, the Committee to Protect Journalists has identified 40 instances of members of the press being arrested or detained in the United States since the beginning of 2017.

The Constitution singles out the press for protection because of its unique roles as government watchdog and public informant. The Court should have given this direct constitutional dictate its due long ago, and its failure to do so has always come with risks. But thanks to President Trump’s ongoing enmity toward the press, we are now seeing the consequences far too clearly. It is time for the Court to embrace what the framers articulated so long ago—we must protect our press, because that is how we protect ourselves.

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FAN 200 (First Amendment News) Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”

Lyrissa Lidsky is the Dean and Judge C.A. Leedy Professor of Law at the University of Missouri School of Law. Her latest article is titled “#I🔫U: Considering the Context of Online Threats,”  California Law Review (forthcoming).  

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Dean Lyrissa Lidsky

Alex Jones of Infowars certainly knows how to monetize controversy, or at least he did until now. Since 1999, Jones has built a vast audience and has made millionsof dollars by peddling conspiracy theories and survivalist supplies via the radio, Internet, and social media. He’s asserted that the U.S. government was behind the attacks on 9/11, that Democratic officials were using a pizza parlor in D.C. to operate a satanic child porn ring, that the Sandy Hook Elementary School shooting was a hoax, that a man who witnessed the killing of a woman protesting against armed white nationalists in Charlottesville was actually a deep state operative and accessory to the murder, and that a Boston manwho had never been to Florida perpetrated the Parkland shootings. Several of the people targeted by Jones, including the Sandy Hook parents he labelled “crisis actors,” have sued him for libel and other torts. As a result of public pressure, Jones’ content has now been “de-platformed” from Facebook, YouTube, Vimeo, iTunes, LinkedIn, Pinterest, Mailchimp, Stitcher, YouPorn, and Spotify. He has also been suspended temporarily by Twitter.

It is worth examining the Sandy Hook parents’ libel suits against Jones to gain clarity about the limits of the First Amendment and contemplate some of problems libel law faces in the “post-truth” era.

Alex Jones (credit: Political Dig)

If Jones were simply peddling conspiracy theories perpetrated by “the government” or “the CIA,” he would not be subject to tort or criminal liability for his speech. And his First Amendment protection would hold even if his conspiracy theories targeted broad groups such as African-Americans, Jews, or Muslims with hateful or pejorative lies.

Although the Supreme Court has held that false information has “no constitutional value,” lies that do not cause direct, tangible harm to individuals are constitutionally protected from government censorship (though not from censorship by Facebook or other private platforms). For at least the last fifty years, the Court has not deemed interests such as preserving the dignity of a group or protecting society from “fake news” as sufficient to justify imposing liability upon speakers who peddle lies. Moreover, the Supreme Court has repeatedly said that the State may not punish individuals simply for holding disfavored views, although it may punish incitement, discrimination, threats, crimes, and defamation.

The reason for protecting the speech of conspiracy theorists rests in part upon an unwillingness to unleash the government to serve as a roving truth commission. The government’s temptation to suppress criticism would be far too great, and the history of censorship is replete with examples of the suppression of truth and enshrinement of error. In general, therefore, the remedy for false speech is counterspeech. As the Court stated in Dennis v. United States: “the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies.”  A further pragmatic rationale for letting even hateful conspiracy theorists seek adherents (as long as they do not target individuals) is that government suppression can sometimes lend them and their theories more legitimacy (as I’ve discussed here). In such situations, it is better to leave them peddling their wares in the back alleys of the marketplace of ideas than risk bringing them to the fore by censoring them.

Sandy Hook Elementary School shooting (credit: CBS News)

Jones crossed a critical line when he went beyond touting vague conspiracy theories to disparaging the parents of murdered children by accusing them of fabricating their children’s deaths. As libel cases go, this is about as easy a case as one can imagine—at least assuming that the claim is not barred by Texas’ one-year statute of limitations. Inventing supposed “facts” that cause reputational harm to vulnerable individuals is the essence of the tort of defamation (which encompasses libel and slander). The central issue in a defamation claim is whether the defendant published or posted a statement that was false and defamatory. Here, copiously available evidence testifies to the falsity of Jones’ statements, and the accusation that parents fabricated a child’s death to advance a social agenda is certainly one that would harm their reputation in the eyes of their community.

Jones’ lawyers have argued that his statements are not defamatory because they are mere opinion. They are not—at least not in the constitutional sense that would bring them within the mantle of First Amendment protection. In considering protection for opinion, the Supreme Court has held that the government may not award plaintiffs damages for harm to their reputations based upon a defendant’s publication of statements about matters of public concern that are unverifiable or cannot reasonably be interpreted as stating actual facts about the plaintiff.

Jones’ lawyers have asserted that no reasonable readers or listeners could interpret Jones as stating actual facts about his targets. I have long and repeatedly argued that context is crucial in discerning whether speech is asserting actual facts or instead is mere hyperbole. Although Jones’ statements as a whole should certainly be taken with a grain of salt by reasonable readers, there is little about his statements targeting the Sandy Hook parents that brand those statements as non-factual. Admittedly, Jones uses a ranting or hectoring tone in many of his videos, and it is public knowledge (easily discoverable via a Google search) that some of his prior conspiracy theories have been proven false. But Jones appears to have taken pains to bolster his credibility with segments of his very large audience and overcome any assumptions that he might be engaging in schtick or hyperbole.

On the Infowars website, Jones asserts that his radio show, which is “syndicated on over 160 stations across the country . . . routinely breaks huge stories in addition to featuring some of the most insightful and news making guests from across the world.” He touts his “team of news reporters who provide cutting edge analysis” and his past interviews with prominent political figures such as Rand Paul and Noam Chomsky. He has also been praised by President Trump, who appeared on his online show. Moreover, Jones knows that some of his audience members clearly do not view his statements as mere hyperbole, because at least two of them are in jail for responding to his statements with violenceor threats of violence against those Jones accused of wrongdoing.

Jones’ lawyers also assert he lacked actual malice. “Actual malice” is a legal term of art: public officials or public figures who sue for libel must prove that the speaker knew his statement about them was false or recklessly disregarded the truth. To prove actual malice, plaintiffs must present “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The Supreme Court has provided examples of conduct evincing actual malice, and these examples describe Alex Jones’ conduct to a T. In St. Amant v. Thompson, the Court said that actual malice exists if a defendant invents a story, bases it on “an unverified anonymous telephone call,” publishes statements that are “so inherently improbable that only a reckless man would have put them in circulation,” or publishes them despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports.”

Granted, it is not clear that the parents will even have to prove actual malice, because they may be private rather than public figures. It is an open question whether granting media interviews after one’s child is murdered is enough to transform a person into a public figure for libel purposes. Be that as it may, the parents suing Jones should be able to prove actual malice even if they are deemed to be public figures due to the nature of his remarks.

Jones may assert, however, that he did not recklessly disregard the falsity of his statements because he irrationally believed them to be true. As my co-author RonNell Andersen Jones and I pointed out with regard to the Twitter libel cases against Courtney Love, there is no insanity defense to a libel claim. However, the determination of whether a defendant acted with actual malice is subjective, meaning that a defendant’s delusional belief in the truth of his own lies might absolve him of responsibility for libel. It would be highly problematic, however, to give mentally disordered or vengeful defamers license to embark on campaigns of character assassination based on fantasies they concoct. As a practical matter, the problem is likely to be solved by the skepticism of juries, for it is hard to believe a jury would accept Alex Jones’ assertions that he believes his own baseless accusations. Moreover, one can hardly conceive of more sympathetic plaintiffs than the parents of murdered children who were subjected to death threats because of one man’s cruel accusations.

Even ardent defenders of free expression must concede there are limits to the right lest they lose credibility. Drawing the line is easy when purveyors of malicious lies are harming the reputations of innocent individuals, such as the Sandy Hook parents. Defamation law exists to enforce baseline norms of civility and respect for the dignity of the individual. It also rewards the investment of individuals in their good names by giving them redress when those names are smeared by unscrupulous speakers such as Jones. Moreover, defamation law helps guarantee that public discourse retains a necessary anchor in truth, because public discourse without such is meaningless.

Given these important interests, proper resolution of an easy case is a good way for the law to remind speakers like Jones that we do not live in a post-truth era after all.

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FAN 200 (First Amendment News) Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism'”

Marjorie Heins is the author of Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (2013) and, most recently, Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project, 2001-2017.

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When I was a new staff lawyer at the ACLU of Massachusetts almost 40 years ago, I quickly learned that among the many sources of contention that beset public interest organizations, one stood out at the ACLU: the conflict between what one of our board members dubbed the “absolutists” and the “frontierists.”

Marjorie Heins

The absolutists valued the First Amendment Free Speech Clause above all else, and insisted that “no law … abridging the freedom of speech” meant exactly that — “no law.” The frontierists saw free speech as one among many rights the ACLU was committed to defending, averred that “no law” did not really mean “no law” or, alternatively, that the constitutional right to “the freedom of speech” does not encompass every word written or uttered by a human being, and that often there is a need for balancing — that is, that sometimes other rights, such as equal protection, outweigh untrammeled speech.

I was always puzzled by the absolutist position. Obviously, there are many long-established exceptions to absolute free speech: defamation laws, invasion of privacy laws, obscenity laws (this one being, admittedly, dubious as a matter of both history and public policy), laws against false advertising, threats, incitement, bribery, extortion, and perjury. More recently, civil rights laws have been interpreted to bar racial and sexual harassment, although here, as in the more traditional areas, there has to be careful, sometimes excruciatingly careful, line-drawing that gives breathing space to expression and guards against vagueness and overbreadth.

As I learned, these are not the only complications one encounters in trying to formulate an understanding of “the freedom of speech” and its limits. How, for example, to reconcile the Establishment Clause prohibition on public funding of religious proselytizing with the right of students at public universities to viewpoint-neutral support for their activities? How to analyze conditions imposed on government funding of the arts, humanities, or scientific research? These were just two of the tricky balancing acts the ACLU confronted when I moved to the national office in 1991.

The first issue arose in the Supreme Court case of Rosenberger v. University of Virginia; ACLU staff and board passionately argued and solemnly reflected; ultimately we submitted an amicus brief that supported the proselytizing students but with an “on the one hand/on the other hand” approach that strenuously emphasized the importance of the Establishment Clause. The Supreme Court ruled for the students, over the vigorous dissent of Justices Souter, Ginsburg, Stevens, and Breyer.

The second issue, raised by National Endowment for the Arts v. Finley, created particularly rough political fallout. We represented artists who challenged a vague and viewpoint-based law that required the NEA to consider “general standards of decency and respect for the diverse beliefs and values of the American public” in awarding grants. The political stakes — primarily, Congress’s possible defunding of the NEA entirely — were reflected in the Supreme Court’s disingenuous decision upholding the “decency and respect” law by stripping it of any real meaning. Justices Souter, dissenting, and Scalia, concurring, both recognized the obvious force and chilling effect of the “decency and respect” law, Souter arguing that this made it unconstitutional; Scalia arguing the contrary. But the dilemma for absolutists and frontierists alike was how to apply the Free Speech Clause in the context not of criminal or civil penalties but conditions on funding. Here, our vagueness argument was particularly shaky because the very essence of arts grant-making depends on vague standards such as merit and excellence.

Of course, there have been, and continue to be, many other intense debates within the ACLU, and the First Amendment community generally, over the meaning and limits of free speech. One notable example is the ACLU’s “money equals speech” approach to campaign finance regulation. Those leaning toward absolutism adhere to the old “marketplace of ideas” metaphor despite the dramatic imbalances in that marketplace when it comes to campaign spending. Those leaning toward frontierism (myself included) think “the freedom of speech” mandate doesn’t prohibit limits on spending in the interest of preventing corruption and making the proverbial marketplace less lopsided.

Joan Bertin

When I departed the ACLU in 1998 and, shortly after, began the Free Expression Policy Project, or “FEPP,” in collaboration with my former ACLU colleague Joan Bertin, then the new director of the National Coalition Against Censorship, I set out the understanding of free speech that I’d refined after many years in the trenches. As I wrote on the FEPP website: threats, false advertising, and sexual or racial harassment (where properly defined), are three examples of speech that doesn’t have First Amendment protection; but “a painting or photograph with sexual content is not sexual harassment; and a work of literature or scholarship is unlikely to constitute a threat. … Unprotected speech should be narrowly and specifically defined, and have a direct, tangible, demonstrably harmful effect.” In other words, free speech should be the default position, but there are inevitably important, well-justified exceptions.

Thus, for example, in the perennially fraught area of sexual speech, obscenity laws are unconstitutional (the Supreme Court to the contrary notwithstanding) because they are not only intolerably vague, but they are premised on generalized moral attitudes about likely corruption of adults and minors, rather than on direct, tangible harm, despite well-publicized efforts over the years by some psychological researchers to establish harmful behavioral effects. The same applies to the efforts of some feminists in the 1980s to stamp out pornography, as they defined it, in terms of images that subordinate women (many other feminists disagreed). As with obscenity laws, the bad effects that the pro-censorship camp asserted depend on mental mediation — that is, the individual ways in which different men might respond to arousing if admittedly often disturbing pictures.

Likewise, in the political minefield of violent entertainment, messages that can reasonably be interpreted to encourage violent behavior rarely amount to incitement — that is, to triggering a reaction so immediate that the hearer doesn’t have time to reflect. Instead, violent stories, pictures, and films need mental mediation, which will be different for each viewer, and despite well-funded efforts over the years to prove bad behavioral effects, the very nature of the problem makes it unamenable to scientific proof either way, as some courts and scholars have recognized.

None of this First Amendment rumination, of course, solves the real social problems posed by lowest common denominator entertainment or other, worse scourges of our social media age, with its lightning-speed global spread of racist hate speech, Holocaust denial, threats of violence, blackmail, revenge porn, and much more. The challenge for the corporate, private industry platforms that now control most of our public communications is daunting.

Justice Elena Kagan

The First Amendment Free Speech Clause, like many other constitutional provisions, is Delphic and thus always requires interpretation in the light of social and political realities; and the balancing that inevitably goes on, both in the courts and in the court of public opinion, is politically driven. Exhibit one for this proposition is the regrettable corporatization or “weaponizing” of the First Amendment (to quote dissenting justice Elena Kagan this year in Janus v. American Federation of State, County, and Municipal Employees) that the Supreme Court under John Roberts has effected: scholars and pundits alike have noted how free-speech claims that serve for-profit corporations, wealthy individuals, and/or a right-wing agenda have consistently received hospitable reception at the Court, whereas claims by students, public employee whistleblowers, prisoners, and humanitarian aid organizations are rejected. The Brennan Center for Justice documented the imbalance in 2011, and more recently, journalists Adam Liptak and David Gans, among others, have noted an acceleration of the trend.

As Justice  Kagan wrote in Janus (which ruled that requiring public employees to contribute to the cost of collective bargaining violates the First Amendment): “Speech is everywhere — a part of every human activity. … For that reason, almost every economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”

This last thought from Justice Kagan echoes calls for judicial restraint decades ago, when judicial activism meant primarily the striking down of progressive economic legislation. Judicial activism came to have quite a different meaning under the Earl Warren Court, when it invalidated racially discriminatory laws and restrictions on the speech of civil rights demonstrators and Vietnam War protestors. Which only goes to support my point that the interpretation of the Free Speech Clause is inevitably political.

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FAN 200 (First Amendment News) Tamara R. Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”

Tamara R. Piety is a professor of law at the University of Tulsa Law Scool. She is the author of Brandishing The First Amendment: Commercial Expression in America, as well as numerous articles and essays about commercial and corporate speech. Her most recent articles include, “Why Personhood Matters,” in Constitutional Commentary  and “The First Amendment and the Corporate Civil Rights Movement” in the Journal of Business & Technology Law. 

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Professor Tamara Piety

Imagine the following scenario: a group of people  believe that cancer is punishment for sins and that God gives people cancer in order for them to “get right with the Lord.” Because of these beliefs, group members reject conventional medical treatment for cancer. But they are  concerned that so many other people seek treatment for cancer, rather than looking to God. They believe such people are passing up an opportunity for redemption made especially for them. They also believe that the billions of dollars spent on treating cancer is contrary to God’s will and deprives other needy people, especially children, of government assistance. Because of its concerns, the group is attempting to attract more adherents. In the past, such efforts involved door-to-door solicitations. But this is an excruciatingly slow way of gaining supporters; and because most people do not have cancer, they are not interested in the group’s message. “If only there was a way to make sure that we were only talking to people with cancer!,” leaders said.

The group learns that there is a way to specifically target people with cancer: advertise as a cancer treatment center and most of those responding are likely to be cancer patients. Once potential patients are in the door, they can be told why this dreadful disease hides a special opportunity that God has given them. The group is overjoyed that this stratagem will deliver just the people they need to talk to about this life and death matter. So the group forms a non-profit corporation it calls “AAAmerican Cancer Care.” They choose this name so that it will likely be first in any directory and appear on the first page of any on-line search for cancer treatment. Just to be safe, the group also buys a Google ad guaranteed to appear on the first page.

Now our putative religious group has a built-in stream of potential converts in the form of people who are seeking cancer treatment and imagine that AAAmerican provides it. This is ideal from the group’s perspective; it is far from ideal for cancer sufferers who arrive looking for cancer care and instead get a lecture that their disease is a punishment from God who will very likely let them die if they do not turn their will and their life over to Him and reject all medical treatment.

If you had terminal cancer, had troubled to do a search for a treatment center, perhaps taken time off work, maybe even traveled a substantial distance to come to this center and then were confronted, not only with no services, but with this kind of message, you might feel annoyed at best; and traumatized and angry, at worst. But you would certainly feel misled. You would be right; our hypothetical group not only knows that such mistakes are likely; it is actually counting on them. The whole purpose of the center is to proselytize the group’s message, not to treat cancer. It doesn’t want healthy people. It wants people with cancer.

The above scenario is no mere, abstract hypothetical; it is what many “crisis pregnancy centers” (CPCs) do every day. They engage in advertising calculated to confuse the public about what services they provide, hoping thereby to drive pregnant women seeking abortions to their doors. These are the women the CPCs wish to engage with their message. They are not interested in talking to women who have already decided to proceed with the pregnancy. Their target audience is women who have decided to pursue an option which the CPCs do not provide: abortion. And in order to bring these women to their doors, the CPCs have deliberately obfuscated the matter of what services they provide.Their business model appears to be predicated on luring women into their centers under false pretenses. Because abortions are more difficult to obtain in some states than others, it is not unusual for women seeking abortions to travel long distances; they may have to spend money on childcare, or have forfeited a day’s pay, to make the trip. Because CPCs do not provide abortions, those sacrifices will be for naught if such a woman arrives at a CPC. Worse still, there are reports that some CPCs have promised women that if they choose to carry their pregnancies to term, the center will assist them with after care, adoption services, and financial assistance that they subsequently failed to deliver.

Shouldn’t a state be able to prohibit deception like this? Can’t states regulate false advertising? For most of the 20th century the answer to that question would have been “yes.” After the Supreme Court’s decision in National Institute of Family and Life Advocates d/b/a NIFLA v. Becerrathe answer is probably “No.”

Becerra involved an attempt by California to address the public harms of the CPCs’ deceptive business model by requiring CPCs to provide women with information about where they could obtain (among many other services) abortions. The law was only a partial measure. It did not forbid the deceptive advertising itself (which, arguably, it should have been able to do). So it would not have prevented women from being deceived. And it could not prevent those who were deceived from having to endure unwanted lectures and pleas. But it would have mitigated the harm by at least presenting women who had arrived at the CPC under a misunderstanding about the services it provided, with truthful information about where the services they were seeking could be had.

The disclosure provided:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify contact the county social services office at [telephone number of relevant office]. §123472(a) (1). (Breyer, J. dissenting Slip op. at 2).

The Supreme Court held that California’s law requiring such notices was unconstitutional because it constituted “compelled” speech which violated the First Amendment rights of these crisis pregnancy centers. The Court held that these notices, which offered true, factual information about where women could obtain abortions, and which were devoid of argument about the merits of any choice, were “content based” and “controversial”; the warning constituted a “script,” the Court said, which someone opposed abortion should not be compelled to say.

These characterizations are – and there is just no delicate way to put this – nonsense.

Abortion is controversial: a true statement about where one may be obtained is not. And the characterization of this truthful, factual disclosure as anathema to abortion opponents overlooks the fact that they would not be in the position to have to make these hated disclosures had they not intentionally lured pregnant women to their centers under false pretenses in the first place, because, make no mistake, the pregnant woman seeking an abortion is the CPCs’ target audience. The CPCs have nothing to offer to women who were already planning to carry their pregnancies to term if their mission is to discourage abortion. At best, they may offer some health screenings, pregnancy tips, and the like. But that is not the reason for their existence. The reason they exist is to try to convince women who have chosen to have an abortion, or women who are not sure what they want to do, not to have an abortion.

Probably most people would have no problem with the state forbidding our hypothetical cancer “treatment” center from advertising, let alone requiring it to provide truthful information about where such treatment was available. The state has long been given the authority, authority which has been relatively uncontested for decades, to regulate most false advertising. Why is this different?

It may be that the Becerra decision is an outlier, that it is an example of  “abortion exceptionalism.” Certainly the Supreme Court has been willing to make astonishing exceptions to ordinary First Amendment doctrine when it comes to abortion: upholding rules prohibiting doctors from offering true information (the availability of abortion) and to require them to provide false “information” (abortion is linked to breast cancer) or requiring procedures that are not medically necessary (ultrasounds). But in some ways it is mainstream and consistent with the Court’s other First Amendment decisions which have injected confusion into the commercial speech doctrine by increasingly relying on a “content neutrality” requirement for speech covered by the doctrine. This is an oxymoronic requirement in the context of a doctrine defined by its content: it is the commercial speech doctrine. It has also been expanding the definition of what speech is protected far beyond its previous boundaries. This imperils regulation of false advertising.

Given that in the Stolen Valor case the Court also discarded the decades-old understanding that false speech had no intrinsic First Amendment value, it seems we once again are confronted with a claim for a constitutional right to lie. This time, unlike in the Nike v. Kasky case, the Supreme Court majority has apparently agreed that there should be such a right.  It remains to be seen whether this is simply another example of abortion exceptionalism, or if it presages a finding that commercial speech is to be treated like other protected speech. In New York Times v. Sullivan, Justice William Brennan proposed that when it comes to freedom of expression, the First Amendment requires some “breathing space” for false speech. (p. 272). I doubt he or any other member of the Court thought false advertising required similar latitude. Does commercial speech really require such “breathing space”? We may be about to find out.

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FAN 200 (First Amendment News) Kelli L. Sager & Selina MacLaren “First Amendment Rights of Access”

As a partner at Davis Wright Tremaine LLP, Kelli L. Sager regularly represents media outlets requesting access to proceedings in high-profile trials. Selina MacLaren recently joined Davis Wright’s media group after completing a fellowship with the Reporters Committee for Freedom of the Press.

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Kelli L. Sager

When one thinks about First Amendment rights, “speech” typically is the first thing that comes to mind.  But particularly in light of current events, the constitutional right of access to court proceedings and records that derive from the First Amendment are more important than ever.

Case in point:  On April 16, 2018, Davis Wright partner Robert Balin went to court for a hearing involving a search warrant executed against President Trump’s personal attorney, Michael Cohen. When it appeared that the judge was going to keep the identity of one of Mr. Cohen’s clients secret, Rob politely interrupted, and with the judge’s permission, argued on behalf of the public and press that the First Amendment right of access to court proceedings required the information to be publicly disclosed.  His arguments were not novel – media lawyers across the country regularly argue for these kinds of access rights – but unlike the average civil or criminal case, the public’s interest in this case is far more fundamental, given the individuals and allegations involved.  When the judge agreed that the information could not be kept secret – and Mr. Cohen’s client was revealed to be Fox News personality Sean Hannity, an ardent supporter of the President – there were audible gasps from the spectators.  As NPR’s Miles Parks put it, “[a]ll the air got sucked out of the room.”

The court proceedings involving Mr. Cohen are only one of many civil and criminal matters now playing out in courtrooms across the country, as President Trump’s former and current associates are criminally prosecuted (like Paul Manafort), subjected to government investigations (like Mr. Cohen), or sued civilly (like former RNC Chair Elliott Broidy).  Even the President himself is engaged in litigation, both as a defendant and as a plaintiff.

Imagine if all of these proceedings were taking place behind closed doors, where the public had no idea what was taking place until a result was announced (if it was announced at all).  History teaches us that such secrecy sows public mistrust and allows abuses of power, while openness promotes public understanding and acceptance of the adjudicative process. This unique – perhaps unprecedented – moment in history reinforces the critical importance of constitutional rights of access, and presents both a challenge and an opportunity for the media to vigorously advocate for these rights.

Selina MacLaren

The Constitutional Right of Access

The principle of open access to the courts predates American democracy. As the United States Supreme Court has noted, the concept of permitting public scrutiny of judicial proceedings has been recognized in the English justice system “from time immemorial” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566-67 (1980) (quotations and citation omitted)), and traces back to the “days before the Norman Conquest,” when free men were required to attend court cases as an early form of jury duty.  (Id. at 565)

In that seminal case, the parties agreed to close the courtroom during a high-profile criminal trial, negating any concern about the criminal defendant’s Sixth Amendment right to a “public” trial.  But reporters argued that their constitutional rights also were at issue – under the First Amendment.  The Court agreed, finding that open access to criminal trials was historically permitted, and that such access served an important public purpose, namely, to instill confidence in the judicial process.  As Chief Justice Warren Burger summarized for the majority:  “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” (Id.at 572)

This recognized constitutional right of access has since been expanded from criminal trials to jury selection (Press-Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984)), preliminary hearings (Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986)), and civil court proceedings (ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (collecting cases)), among other proceedings.  To determine whether the First Amendment right of access applies to a particular proceeding or document, courts apply a two-part test:  (1) Has the proceeding historically been open to the public? (2) Does public access play a significant positive role in the functioning of that proceeding? Where both questions are answered affirmatively, courts have found a constitutional access right, which may only be overcome if closure is necessary to serve a “compelling government interest,” and the limit on public access rights is “narrowly tailored to serve” that interest.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982).

Given changes in judicial proceedings over the last two centuries, this “experience and logic” test is not always a perfect fit, and much of the law has developed in lower state and federal courts, without direct rulings by the Supreme Court.  For example, in one seminal case, the California Supreme Court held that the constitutional rights of access under the First Amendment apply equally to civil court proceedings, even though the United States Supreme Court has not directly reached this issue.  NBC Subsidiary v. Superior Court20 Cal.4th 1178 (1999).  Courts remain divided on some significant issues, including the extent to which the constitutional right of access applies to court records (a question that may be presented to the Supreme Court in a petition for certiorari this Fall).

The importance of public access to court records and proceedings, however, can hardly be questioned.  At every level of the judiciary, important public rights are being adjudicated; not only in criminal trials, where an individual’s freedom is directly at stake, but in civil proceedings that determine property rights, personal autonomy, and civil liberties, among many other things.  The ability of the public to scrutinize the participants at every level of these proceedings, and evaluate the decisions that result, is critical to the functioning of our democracy.

Securing Access Today

In the current political climate, access to judicial proceedings and records is even more important.  Although it has long been recognized that access to court proceedings improves public understanding of the judiciary and “promote[s] trustworthiness of the judicial process” (Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quotation and citation omitted)), there is an additional benefit to access to the current slate of high-profile court proceedings:  improved public understanding of and trust in the democratic process.

Paul Manafort (credit: CBS News)

The Special Counsel investigation and related proceedings involving the politically powerful already have resulted in dozens of indictments and guilty pleas.  Proceedings involving Mr. Cohen, and disclosures about his conduct on behalf of the President, have resulted in accusations about serious campaign-finance law violations. The trial of former Trump campaign chairman Paul Manafort, while not directly involving campaign finance law, allowed the public to learn about Trump campaign affiliates and raised additional questions, particularly in light of testimony from a former Trump campaign deputy manager detailing an extensive criminal conspiracy.

Mr. Manafort, who was found guilty of federal banking and tax crimes, is now facing separate charges in a new court, which will likely result in another newsworthy trial.  Other civil and criminal cases are pending, including lawsuits brought by alleged Trump mistress Stormy Daniels, a lawsuit brought by a former Playboy Playmate who allegedly had an affair with RNC Chair Broidy, and others.  In each of these cases, the public’s right of access to proceedings and records has been challenged by individuals seeking to keep the sordid allegations secret, and in each case, the public and press must vigorously fight for their constitutional rights of access, rather than allowing allegations of wrongdoing to be swept under the rug.

As one court noted, “the public’s right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987).  The public’s and press’ constitutional access rights thus are at their apex where, as here, court proceedings involve the very processes by which the leader of the executive branch has been elected.

Advancing Access by Electronic Media

(credit: Thought Co.)

Even where there is intense public interest in a particular court case, logistical obstacles prevent most people from personally attending court proceedings or culling through voluminous court records. But technological advances allow us to overcome the physical limitations of the courtroom, and democratize access in previously unimaginable ways.  The availability of electronic records makes it possible to access them from anywhere in the world; and where proceedings are televised (or live-streamed), anyone interested in observing a particular proceeding can do so, even from distant locations and despite physical limitations on space in a particular courtroom.

Unfortunately, there is no public audio or video of the moment when Sean Hannity’s name was announced in a crowded courtroom, or footage showing key testimony during Paul Manafort’s criminal trial, because cameras generally are not permitted in federal courts.  Indeed, even the United States Supreme Court does not permit its proceedings to be televised, and although audio recordings of key arguments are available, there is often a significant delay.  The rationale for these restrictions on electronic coverage vary: concerns that lawyers or witnesses will grandstand, that prospective jurors will avoid service (or seek it out), and even the excuse offered by one current member of the Supreme Court – the concern that parties will hire photogenic lawyers, rather than experienced advocates.

These excuses have been refuted by empirical evidence, including widespread experience in states like Florida, where electronic access has been allowed for decades without causing the parade of horribles suggested by opponents of courtroom cameras.  Certainly empirical evidence does not support the claim that electronic coverage will threaten the defendant’s fair trial right:  Despite televised trial coverage, O.J. Simpson was acquitted of murdering his ex-wife and Ronald Goldman, even though a civil jury later found that he was responsible for the crimes.

On the other hand, the televising of proceedings like the criminal trials of O.J. Simpson [in which Ms. Sager represented the news media] and Oscar Pistorius, and, recently, the sentencing proceedings involving Larry Nassar, generated tremendous public interest. But even these high-profile cases pale in comparison to the importance of and public interest in the proceedings involving the current administration and associates of the President.

Providing complete public access to court proceedings, through electronic media, is long overdue.  Given the undeniable importance of the issues that will be decided in the many proceedings associated with the current administration, now is the moment.

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FAN 200 (First Amendment News) Ruthann Robson, “The Cyber Company Town”

Ruthann Robson is  a Professor of Law & University Distinguished Professor at CUNY School of Law. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013), as well as the books Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law(2011). She is a frequent commentator on constitutional and sexuality issues and the co-editor of the Constitutional Law Professors Blog.

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Professor Ruthann Robson

The constitutional chasm between public and private can quickly become a murky swamp when free speech claims arise.  Perhaps this lack of clarity is attributable to the First Amendment’s status as a political and societal concept as well as a legal one, or perhaps it is because the always problematical public-private divide has increasingly been eroded in our era of “public-private partnerships” and “privatization.”  When the free speech involved occurs on social media — which operates currently as our corporate-owned town square — it can seem like a quagmire, especially if the participants are government officials.

Before considering three contemporary examples, a look back at the landmark case of Marsh v. Alabama (1946) is instructive. Marsh, known as the “company town case,” involved Grace Marsh, arrested for trespassing on the Gulf Shipbuilding Corporation’s property, which was the “town” of Chickasaw, Alabama.  Marsh, a Jehovah’s Witness, had stood on the sidewalk near the post office offering literature; when asked to leave she declined. While the Court is somewhat unclear which First Amendment freedom is at issue — speech, press, or religion — the Court’s majority is definite that such an infringement would not be constitutional if committed by a state or municipality. The Court decides that the fact that the corporation owns title to the land is essentially a technicality which should not prevail over the reality that the company town functions like any other town.  This finding of sufficient state action to make the Constitution applicable is supported by the Court’s conclusion on the merits. Justice Black’s opinion for the Court states that “many people” in the United States live in “company-owned towns” and these people, just like others, “must make decisions which affect the welfare of community and nation,” and so must be informed.

In 2018, social media is accessed by more than 70% of the United States population and has largely replaced leaflets distributed on the corner as a source of information that will be used in making “decisions which affect the welfare of community and nation.” According to the Pew Research Center, the most popular sites include You Tube (73%) and Facebook (68%), as well as Instagram (35%), Pinterest (29%), Snapchat (27%), LinkedIn (25%), Twitter (24%), and What’s App (22%). In the United States Supreme Court’s unanimous decision last year in Packingham v. North Carolinathe Court found a state statute prohibiting registered sex offenders from accessing social networking sites violated the First Amendment.  Justice Anthony Kennedy writing for the Court stated  that “we now may be coming to the realization that the Cyber Age is a revolution of historic proportions,” but we do not yet appreciate the “full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”  Concurring, Justice Alito found it important to add that the entirety of the internet or even social media sites are “the 21st century equivalent of public streets and parks.”  In Packingham, the state action threshold was easily crossed: there was a state statute with criminal penalties.  The more vexing situations occur when these cyber- “streets and parks” are owned and operated by private companies.

Alex Jones (credit: Political Dig)

There is a  factional (and presidentially approved) argument that these companies practice “censorship” of “conservative” voices.  Recent controversies surrounding “conspiracy theorist” Alex Jones and his platform “InfoWars”are illustrative.  YouTube and Facebook removed Jones’ content and terminated his accounts, while Twitter penalized Jones by curtailing some of his “privileges.”  While the companies made decisions based on interpretations of their “terms of service,” arguments about whether or not the companies were justified often veered into constitutional doctrine, including whether falsehoods, hate speech, and incitements were protected.  When the First Amendment was specifically cited, this provoked a rejoinder of the state action doctrine based on the distinction between the public and private. This in turn was rebutted by the observation that Facebook, for example, is a “public company” evincing a confusion wrought by the state action doctrine (as well as the law of corporations). But even if one recognized that the First Amendment did not apply to the social media companies because they were private actors, there was an argument it should.

More sophisticated legal thinkers, including law students, would be able to frame arguments extending the Marshcompany-town holding.  Yet in Marsh, the application of the First Amendment served to protect Grace Marsh and arguably the community living in Chickasaw, while allowing well-funded conspiracy theorists to not only access but potentially overrun our cyber town squares might result in less “information” and “free speech” given our current First Amendment doctrines that presume a level playing field in the “marketplace of ideas.”

Closer and even more doctrinally difficult situations occur when a government official uses social media and the platform functions. Consider a local government official using the functions of Facebook, including the ability to remove comments to one’s own post and to block a person.  Last year, in Davison v. Loudon County Board of Supervisors, a United States District Judge in the Eastern District of Virginia found that these acts constituted sufficient state action and violated the First Amendment. The judge analyzed the elected official’s uses of the Facebook page, noted that she had government staff who assisted with the page, and also had a separate personal Facebook page.  Although the politician could “take” the page with her when she left office, the judge concluded she “used it as a tool of governance” and the page reflected her efforts to “swathe” it with “the trappings of her office.”  The judge found that this county board supervisor (although not the entire Board of Supervisors) was subject to First Amendment and had violated it.

Finally, there is the President and his notorious Twitter account and statements. The Department of Justice, representing the President, has appealed a final order finding that the state action requirement was satisfied and that the President did violate the First Amendment when blocking users from viewing or responding to his tweets. In her extensive opinion in Knight First Amendment Institute v. Trump, United States District Judge Naomi Reice Buchwald rejected the argument that blocking was not state action because the blocking functionality was afforded every user. She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now. Relying on stipulations of the parties, the judge reasoned that together with federal employee Daniel Scavino, the “White House Social Media Director,” “President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.”  Having cleared the hurdle of state action, the judge found a First Amendment violation, importantly observing that the “audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.”

When government officials, whether the President or a local member of a county board, suppress dissident voices in the virtual public square, there is not only “viewpoint discrimination” under First Amendment doctrine, but also an attempt to manufacture consent so dangerous for democracy.  Their acts should clearly constitute state action and they should be held to the rigors of the First Amendment.  Less clear is whether the multi-billion-dollar companies that presently host our public squares should be subject to constitutional constraints in the same manner as the “company towns” of the last century, especially if the consequences of doing so afford us less free speech and make us less informed as we navigate our cyber sidewalks.

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FAN 200 (First Amendment News) Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”

Laura Handman and Lisa Zycherman are attorneys at the Washington, D.C. office of Davis Wright Tremaine (DWT).

Ms. Handman ia partner at DWT and is the co-chair of the firm’s appellate practice and divides her time between the New York and D.C. offices. For thirty-five years she has provided pre-publication counseling and litigation services from complaint through trial and appeal to U.S. and foreign broadcasters, film studios, and book, magazine, newspaper and Internet publishers and non-profits.

Ms. Zycherman is counsel at DWT.  She represents and counsels clients on a wide range of issues in First Amendment, media, and intellectual property law, including libel, copyright, trademark, right of publicity, privacy, and newsgathering matters. Lisa also advises newspaper, magazine, website, television, film, and book-publishing clients on pre-publication and pre-broadcast legal issues.

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Laura Handman

SLAPP suits – strategic lawsuits against public participation, a longtime part of the corporate playbook – are evolving.  The latest evolution involves the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, the famed set of laws designed to take down crime groups like the Mafia.

When we talk about censorship, we often focus on government actors.  But increasingly serious threats to advocacy and free expression are also being brought by corporations.  SLAPP lawsuits are a tool used by corporations to silence critics and First Amendment-protected speech.  They are often filed not because the plaintiff thinks they can win, but to harass and bleed the defendant of funds, and hopefully make them think twice about public criticism in the future.

A string of recent cases raise the question whether a company that is being targeted by protests and public criticism can respond using RICO laws. Congress passed the RICO statute in 1970 to help with some of the difficulty the government traditionally had prosecuting large organized crime rings.  RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its illegal acts, prosecute the people who supported it, and take its assets.  In this manner, a RICO claim is really just an elaborate conspiracy claim – but one that provides for treble damages, attorneys’ fees, and, perhaps most tantalizing of all, the ability to brand the defendant a racketeer.

Lately, the statute has been weaponized to establish a cause of action against activists in the form of a SLAPP suit, coupled with defamation claims, and alleging, most commonly, that an activist has participated in an enterprise, partnership, association, or group and committed at least two acts of “racketeering activity.”  The law itself lists several activities that qualify as a racketeering act, but typically activists will be alleged to have committed some type of fraud.  It is also likely that activists, having been charged with the commission of these activities, will be additionally charged with conspiring to commit these racketeering activities.  RICO is a heavy-weight – in the words of one court, “the litigation equivalent of a thermonuclear device” – and consequently imposes a significant chill on otherwise protected speech.  We know because we are representing defendants in three such suits.

Lisa Zycherman

In May 2016, Resolute Forest Products, a Canadian logging company, filed suit against Greenpeace, Stand.earth, and individual activists in the United States under the RICO statute.  Resolute accuses Greenpeace of “fraudulently” inducing people all over the world “to donate millions of dollars based on materially false and misleading claims about its purported environmental purpose and its ‘campaigns’ against targeted companies.”  The so-called “false statements” are also the subject of libel claims.  Resolute argues that “soliciting money, not saving the environment, is Greenpeace’s primary objective, it has demonstrated time and time again that it will do anything to drive donations, including fabricating evidence.”  And, the company alleges Greenpeace is extorting the plaintiff’s customers by urging them to do business with more sustainable timber companies.  In this manner, the suit essentially argues that allegedly false speech is a criminal predicate act under RICO.

Greenpeace argued in a motion to dismiss that the case was a SLAPP and “an effort to muzzle protected speech.”  Judge Jon S. Tigar agreed, granting Greenpeace’s motion to dismiss the case.  He found that Resolute failed to prove any of its claims of true harm, racketeering, or other specific misconduct, but granted leave to amend, which Resolute did. The Amended Complaint is now awaiting a decision on Greenpeace’s second motion to dismiss.

Resolute is not alone.  In 2016, Leonid Goldstein, a computer engineer in Texas filed a civil RICO complaint against what he called “the climate alarmism bodies,” which included 40 organizations such as Greenpeace, Sierra Club, Climate Action Network, Ceres, and foundations that fund their work, and accused them of engaging in a “long-term criminal scheme” that humans have caused global warming.  A Texas court dismissed the case.

A more serious RICO suit was filed in August 2017 by Energy Transfer Partners ‒ the firm behind the Dakota Access Pipeline ‒ against Greenpeace and other environmental groups seeking $900 million dollars plus legal fees in an effort to not just sensor but destroy the company’s critics.  The complaint echoes Resolute’s claims: a broad conspiracy by advocacy groups running an illegal racketeering “enterprise” to further their own interests while damaging the company, Energy Transfer Partners.  It even alleges support for eco-terrorism, a violation of the Patriot Act, and drug trafficking.  RICO was designed to capture Mafia bosses who have others doing their dirty work. Law firms that are using the statute can target organizations that aren’t directly involved with any criminal behavior.  Dozens of organizations, American Indian tribes, and countless individuals were involved in the protests against the Dakota Access Pipeline.  (BankTrack, a small nonprofit that tracks the funding of controversial projects, was never even on the ground in the Dakota Access Pipeline protests.  It was sending letters to the pipeline’s investors and lenders from the Netherlands.)  By suing a handful and citing multiple named and unnamed co-conspirators, the suit may cause anyone with any ties to the movement to think twice before sending the next campaign email or launching a new effort.

The district court has already found serious deficiencies in Energy Transfer’s pleadings, dismissing two defendants and requiring it to replead its “hyperbolic” claims against Greenpeace.

There’s at least one obvious connection between the Resolute and Energy Transfer cases.  The same law firm represents each plaintiff and, according to a Bloomberg report, their counsel claims to be “in touch with other companies thinking of filing their own racketeering suits.”  As this lawyer told Bloomberg, he was aware of others considering impending Greenpeace lawsuits “and would be shocked if there are not many more.”

Climate change denier groups and right-wing websites have heralded these lawsuits against Greenpeace.  But there is a double standard here: when environmentalists floated a federal RICO investigation into ExxonMobil regarding its years of funding groups that rejected the scientific consensus on climate change, the same conservatives argued that the lawsuits (which were never filed) violated climate skeptics’ free speech.  “May free speech reign and scientific inquiry prevail,” printed Breitbart News in 2016.

Abusing a law intended to target organized crime syndicates such as the Mafia, these RICO suits paint a sinister looking-glass version of precisely the expansive democratic mobilization that the Supreme Court has so often embraced as core First Amendment rights.  These suits underscore the need for a uniform federal anti-SLAPP act, which has enjoyed bipartisan support in the past, particularly from trial bar-adverse members of Congress.

Retaliatory RICO SLAPP suits are a blatant attack on First Amendment rights, aiming to disrupt the normal operations of activists and advocacy organizations.  But if these well-financed corporate efforts successfully mobilize RICO against the exercise of core political speech and the rights of association of advocates, there is a deep concern that freedom of the press could be the next target.

At least so far, the effort to turn RICO against news organizations has been strongly rebuffed.  In one suit, an attorney alleged that in connection with reporting on the 2016 United States presidential election, seven television and print news organizations and 17 journalists associated with them acted as an “enterprise” in promoting and disseminating “false and misleading news reports” or commentary concerning Donald Trump’s candidacy for President.  Each false and misleading news report, the plaintiff claimed, was a predicate act of wire fraud supporting a claim of racketeering.  The suit was rejected by Judge Paul A. Engelmayer, however, who found “that dismissal is mandatory because the news reporting that [the plaintiff] assails as wire fraud is speech protected by the First Amendment of the United States Constitution for which civil damages to an offended audience are not available.”  The Second Circuit affirmed.  Hopefully, corporate efforts to annihilate advocacy groups who criticize them will be similarly rejected.