Category: Supreme Court

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

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

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

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

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

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

  1. Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)
  2. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006)
  3. Garcetti v. Ceballos, 547 U.S. 410 (2006
  4. Randall v. Sorrell, 548 U.S. 230 (2006
  5. Beard v. Banks, 548 U.S. 521 (2006)
  6. Davenport v. Washington Educ. Association, 551 U.S. 177 (2007)
  7. Tennessee Secondary School Athletic Association v. Brentwood Academy, 551 U.S. 291 (2007)
  8. E.C. v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)
  9. Morse et al. v. Frederick, 551 U.S. 393 (2007)
  10. United States v. Williams, 553 U.S. 285 (2008)
  11. Davis v. Federal Election Commission, 554 U.S. 724 (2008)
  12. New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)
  13. Pleasant Grove City, UT, et al v. Summum, 555 U.S. 460 (2009)
  14. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)
  15. Ysursa v. Pocatello Educational Association, 555 U.S. 353 (2009)
  16. Locke v. Karass, 555 U.S. 207 (2009)
  17. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
  18. United States v. Stevens, 559 U.S. 460 (2010)
  19. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
  20. Christian Legal Society v. Martinez, 561 U.S. 661 (2010)
  21. Milavetz, Gallop, & Milavetz v. United States, 559 U.S. 229 (2010)
  22. Doe v. Reed, 561 U.S. 186 (2010)
  23. Snyder v. Phelps, 562 U.S. 443 (2011)
  24. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
  25. Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)
  26. Borough of Duryea v. Guarnieri, 564 U.S. 379 (201
  27. Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011)
  28. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)
  29. Reichle v. Howards, 132 S. Ct. 2088 (2012)
  30. Golan v. Holder, 132 S. Ct. 873 (2012)
  31. Knox v. Service Employees International Union, 132 S. Ct. 2277 (2012)
  32. United States v. Alvarez, 132 S. Ct. 2537 (2012)
  33. Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013)
  34. McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014)
  35. Wood v. Moss, 134 S. Ct. 2056 (2014)
  36. Lane v. Franks, 134 S. Ct. 2369 (2014)
  37. Harris v. Quinn, 134 S. Ct. 2618 (2014)
  38. McCullen v. Coakley, 134 S. Ct. 2518 (2014)
  39. Williams–Yulee v. The Florida Bar 135 S. Ct. 1656 (2015)
  40. Walker v. Sons of Confederate Veterans (2015)
  41. Reed v. Town of Gilbert 135 S. Ct. 2218 (2015)
  42. Expressions Hair Design v. Schneiderman581 U.S. ___ (2017)
  43. Matal v. Tam582 U.S. ___ (2017)
  44. Packingham v. North Carolina, 582 U.S. ___ (2017)
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FAN 169 (First Amendment News) NAACP & other civil rights groups file brief in same-sex wedding cake case

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

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

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

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

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

Ilana H. Eisenstein (counsel of record)

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

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

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

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

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

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

Prof. Stephen Vladeck

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

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

Prof. Joshua Geltzer

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

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

For more information, go here.

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

Controversy over Lenny Bruce play heats up at Brandeis University 

       Brandeis University poster for 2016 program on Lenny Bruce

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

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

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

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

Playright Michael Weller

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

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

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

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

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

The Controversy 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * * * 

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

* * * * 

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

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

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

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

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

* * * * 

Prof. Alan Morrison (credit: GW Today_

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

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

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

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

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

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

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

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

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

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

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

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

The Briefs in the Case

FACTS PORTRAYED AS “CREATE” AND “DESIGN”

Colorado Court of Appeals’s Statement of Relevant Facts

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

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

Petitioner’s Statement of Relevant Facts

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

Cert Petition by Jeremy Tedesco (counsel of Record)

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

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

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

Government’s Statement of Relevant Facts

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

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

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

Accord

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

FACTS PORTRAYED AS “BAKING” OR ‘REFUSING TO SELL A “BAKED” CAKE

Respondents’ Statement of Relevant Facts

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

Brief in Opposition Leslie Cooper (counsel of Record)

Accord

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

“Food preparation is not a core First Amendment Activity”

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

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

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

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

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

Car Dealership Raises First Amendment Defense in Firing Transgender Person

Bradley Rudkin

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

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

College Libraries Considering Inserting “Warnings” in Books & More
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FAN 167.2 (First Amendment Law) Campus Speech Debate Continues: Prof. Post Responds to FIRE’s Creeley

Yesterday, I posted Will Creeley’s Free Speech on Campus: A Response to Robert Post. Mr. Creeley’s piece was in response to a forthcoming article by Professor Post titled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Below, Professor Post replies to Mr. Creeley.

* * * * * *

Robert Post (Yale Daily News)

I very much appreciate Will Creeley’s excellent and eloquent post. In these times of overheated and exaggerated exchange, it is a relief to engage in such a thoughtful dialogue.

Creeley defends FIRE’s record of standing up for freedom of speech within university campuses. I have very little knowledge of the kind of cases that FIRE does or does not take, and I certainly do not mean to imply anything in particular about them. I mean only to attribute to FIRE what FIRE itself proclaims on its own website:

Freedom of speech is a fundamental American freedom and a human right, and there’s no place that this right should be more valued and protected than America’s colleges and universities. A university exists to educate students and advance the frontiers of human knowledge, and does so by acting as a “marketplace of ideas” where ideas compete. The intellectual vitality of a university depends on this competition—something that cannot happen properly when students or faculty members fear punishment for expressing views that might be unpopular with the public at large or disfavored by university administrators.

Nevertheless, freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy.

FIRE then proceeds to discuss the First Amendment in a manner that plainly implies that the “freedom of speech” it wishes to defend is the kind associated with First Amendment rights (even if such rights do not technically apply to private universities). This is also suggested by the reference to the “marketplace of ideas” in the passage I have just quoted.

I have not reviewed FIRE’s litigation, and I hope that Creeley will correct me if I am mistaken, but I suspect that in defending free speech rights on campus, FIRE rather routinely invokes standard First Amendment doctrines, like the prohibition on content and viewpoint discrimination, the prohibition on prohibiting speech because it is outrageous or offensive, and so on. Creeley does not dispute this in his statement, and I shall assume it to be true in this post.

The chapter to which Creeley objects was written to contest this rather mechanical application of standard First Amendment doctrines to the context of universities. The chapter begins by discussing the control of classroom speech to indicate how absurdly inappropriate such doctrines are to core university functions. I do not mean to imply that FIRE argues that content neutrality applies to the classroom. My point is merely that FIRE says that it upholds the application to universities of First Amendment doctrines, and such doctrines cannot sensibly be applied to classrooms.

Creeley affirms that FIRE has “never” argued that individual free speech rights apply to students in the classroom. I believe him. But the question is why FIRE has chosen not to defend such rights. I take it, and once again Creeley should correct me if I am incorrect, that the obvious answer is that endowing students with such rights is inconsistent with the university’s mission of education. But this is as much to say that the university’s educational mission trumps the free speech rights of individual students. And the question is why, if this is true in the context of classrooms, it is not equally true throughout the university.

Universities are institutions created and dedicated to the accomplishment of two missions: the expansion of knowledge and the education of students. With respect to the first mission, I have argued elsewhere, and I will not repeat the arguments here, that the “marketplace of ideas” defended by FIRE has no place. See Robert Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press 2012) and Robert Post, Academic Freedom and Legal Scholarship64 J. Leg. Educ. 540 (2015).

In the context of hiring, promotion, tenuring, grants, and so on, the research of faculty is continuously and properly evaluated for competence. First Amendment doctrines protecting the marketplace of ideas and prohibiting content discrimination are thus inapplicable. Faculty are instead entitled to academic freedom, which, as the 1915 AAUP Declaration of the Principles on Academic Freedom and Tenure declares, concerns “not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching, of the academic profession.” Academic freedom of research is about the autonomy of the scholarly community, what Thomas Haskell calls the community of the competent. This is at root why the kind of individual (First Amendment) rights that FIRE is committed to defending are incompatible with academic freedom. To say that in the context of their scholarly research faculty have academic freedom, rather than individual rights, is thus to say that whatever First Amendment rights they may possess are subordinated to the research mission of the university.

Analogously, the individual free speech rights of students are subordinated to the university’s second mission of education. For a general and theoretical argument about why this must be so, see Robert Post, Between Governance and Management: The History and Theory of the Public Forum, 34 U.C.L.A. L. Rev.1713 (1987). Unless I miss my mark, Creeley effectively concedes that this subordination occurs in the context of the classroom. But he quotes Healy v. James for the proposition that individual student free speech rights might be more compatible with university educational objectives in other areas of the campus. I think there is much to be said for that approach. But it requires a sensitive appraisal of whether and how university regulations serve its educational mission in the context of various spaces and dimensions of campus life. Where attributing individual free speech rights to students is inconsistent with that educational mission, they must yield. Otherwise such rights will undermine the university’s very raison d’etre. That is why the Court has explicitly said that “a university’s mission is education” and that the First Amendment does not deny a university’s “authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities,” which includes “a university’s right to exclude . . . First Amendment activities that . . . substantially interfere with the opportunity of other students to obtain an education.” Widmar v. Vincent, 454 U.S. 263, 268 n.5, 277 (1981) (citing Healy v. James, 408 U.S. 169, 189 (1972)). Read More

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FAN 167 (First Amendment News) SPECIAL ISSUE: Robert Post’s Arguments Draw Replies from Erwin Chemerinsky & Will Creeley on Campus Speech Issue

(Credit: Evelyn Hockstein/ for The Washington Post)

This entire FAN post is devoted to recent developments concerning free speech on college campuses. This sampling reveals just how controversial and widespread this debate has become.

Last week I blogged on the campus speech debate as it played out with the Virginia ACLU and its response to the William and Mary controversy (Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy. See also Walter Olson, The ACLU Yields to the Heckler’s Veto, WSJ, Oct. 24, 2017)

As evidenced by the several entries below, the campus speech issue continues to be the First Amendment issue of our times.

Just out: Post-Chemerinsky Exchange

Professors Robert Post and Erwin Chemerinsky exchange views on the topic of campus speech, this in just published Vox posts. Here are a few snippets from that exchange:

POST: “The language and structure of First Amendment rights . . . is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.”

“. . . [M]embers of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom  to engage in professionally competent teaching and research.”

CHEMERINSKY: “Professor Post’s premise is undoubtedly correct: universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.”

  • “First, it is important to distinguish what the law is from what Professor Post thinks the law should be. . . .”
  • “Second, Professor Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. . . .”

 Related: Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, 2017)

Robert Post’s Article & Will Creeley’s Response 

Recall, that in an earlier FAN post I refenced a forthcoming article by Professor Post entitled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Again, here is the abstract of that article:

Robert Post (Yale Daily News)

POST: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

I invited Will Creeley, Senior Vice President of Legal and Public Advocacy at FIRE, to respond to Professor Post’s article. That reply is set out below. Professor Post has been invited to respond. Should he accept, his response will be published in a future post.

WILL CREELEY, “Free Speech on Campus: A Response to Robert Post”

Will Creeley

In an essay for a forthcoming book edited by Lee Bollinger and Geoffrey Stone, Yale Law School professor and former dean Robert Post turns his attention to free speech on campus. Unsurprisingly, Post delivers his argument with characteristic erudition and acuity. Unfortunately, however, his contribution distorts the contours of the current debate by suggesting that my organization, the Foundation for Individual Rights in Education (FIRE), takes positions we do not in fact hold. Post’s misunderstanding of FIRE’s work requires a response.

Post argues that recent campus speech controversies illustrate “our modern failure to appreciate the fundamental purpose of the First Amendment” — that is, to “protect speech that serve[s] the purposes of self-government.” Because “public universities are not public parks,” and instead serve an educational mission, Post concludes that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”

To make his point, Post enlists FIRE as a foil. He writes:

FIRE aggressively proclaims that First Amendment protections of free speech ought to apply within the domain of universities. The assumption is that First Amendment protections attach to speech, and speech occurs within universities. A moment’s reflection, however, reveals the superficiality of this logic.

“Consider, for example, speech within a classroom,” Post continues. “If I am teaching a class on the Constitution, my students cannot ramble on about the World Series.”

But to FIRE’s knowledge, nobody is arguing that they should be able to do so. Certainly, FIRE has never argued as much. Post does not cite any instance of FIRE (or any other organization) advocating that students should have such a right. FIRE has always recognized that professors have a right to control their classrooms. Academic freedom — that “special concern of the First Amendment” — demands it.

FIRE does not intervene in controversies involving in-class student speech. We do not take cases involving grade disputes, accusations of plagiarism, or other academic misconduct. Barring extraordinary circumstances — we have defended students who have been required by faculty to lobby for political positions outside of class, for example — we will not ever be involved in such cases. Post errs by suggesting otherwise, turning FIRE into a convenient strawman.

Post continues in this direction, attempting to show the incompatibility of the First Amendment and campus:

If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics. Universities also assess the quality of the ideas conveyed by professors. If a mathematics professor continuously gets her equations wrong, her competence will be called into question. Universities also compel professors to show up to class, to teach, and therefore to speak.

But again, to our knowledge, no one — not FIRE or other organizations, and certainly not courts — has suggested these examples are at odds with the First Amendment’s requirements, nor would any reasonable observer do so. In fact, the outcomes Post describes are in line with longstanding jurisprudence regarding the role of the First Amendment on public campuses. For example, like courts and the American Association of University Professors, FIRE believes that a faculty member’s in-class speech must be germane to the course’s subject, broadly construed, to earn the protection of the First Amendment and academic freedom. We acknowledge that if a professor isn’t actually teaching his or her class, he or she may be subject to discipline, though we think that such decisions are best left to his or her faculty peers.

Courts (and FIRE) have been more thoughtful about the First Amendment’s application on campus than Post acknowledges. Justice Powell’s statement in 1972’s Healy v. James is representative of the judicial approach, both then and now:

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.

And since the advent of forum analysis, courts have recognized the differences between the various areas of a college campus, noting the obvious distinctions between classrooms (a classic example of nonpublic fora), auditoriums or amphitheaters (designatated public fora), and open outdoor spaces and sidewalks (traditional public fora). See, e.g., Bowman v. White, 444 F.3d 967, 976-77 (8th Cir. 2006) (“A modern university contains a variety of fora…. labeling the campus as one single type of forum is an impossible, futile task.”) The judiciary has drawn these commonsense distinctions for years, but Post does not appear to acknowledge this well-established precedent.

Post’s argument is animated by his concern about applying the First Amendment “to ‘speech as such’ rather than to public discourse.” By invoking the First Amendment in controversies that concern only the quotidian “communication [that] inheres in all aspects of life,” Post worries that we are inviting a “predictable over-extension of First Amendment rights [that] will in the long run prove unsustainable.” In other words, when the speech at issue is not “essential for the free formation of public opinion,” the First Amendment need not apply.

Accordingly, because “public universities are not public parks,” Post concludes that “First Amendment doctrine does not help us resolve” campus speech controversies “because such doctrine derives from the requirements of public discourse within a heterogeneous nation.”

But the controversies in which we engage every day — FIRE’s bread and butter, wherein students and faculty engaging in public discourse outside of the classroom are subjected to censorship by the authorities or calls for such by their peers or the public — stem from analogous disputes between diverse members of a heterogenous campus. (This similarity in microcosm may partially explain the lasting public interest in campus speech controversies, and the way in which campus speech controversies sometimes prefigure or channel larger cultural disputes.) Given that we believe a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living, First Amendment doctrine is not only helpful in resolving these disputes, but essential.

If there is something “deeply wrong” about the First Amendment arguments that have helped protect student and faculty from censorship for decades, then FIRE will be happy to be as wrong as the courts that have crafted and credited them. If arguing for such is just “overblown rhetoric” — then, again, FIRE must simply disagree.

MORE ON CAMPUS FREE SPEECH ⇓ Read More

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Kozinski reviews new book — THE JUDGE: 26 MACHIAVELLIAN LESSONS

Judge Alex Kozinski (credit: The Recorder)

So you thought a judge’s job is to be fair and impartial? To renounce personal gain? To have no agenda? According to Ronald K.L. Collins and David M. Skover in their new book, The Judge: 26 Machiavellian Lessons, that’s all malarkey. If you believe it, you’re a chump. And if you’re a judge who believes it, you should quit and make room for someone who will use his power to advantage. “Power,” the authors tell us, is “that ability to make something happen.” Like Niccolo Machiavelli, whose 16th century guide to executive power they channel, the authors explain how the modern judge can exploit the opportunities his position and Fortuna bestow upon him.

So begins Ninth Circuit Judge Alex Kozinski’s book review published on Law360. Here is another excerpt:

 “The ethics of a great judge are counter-ethics. They do not bow to law’s old pieties, the ones grounded in the myths of justice impartially applied. … Still, the myth of impartiality lives on and, strangely enough, some judges (the weaker ones) actually take their decisional cues from such pious norms.” The ideal judge “appreciate[s] the value of deception.”

Collins and Skover give example after example where U.S. Supreme Court justices have (in the authors’ view) manipulated the law, lied about history, undermined precedent while pretending to follow it, “cram[med] their opinions with half-truths” and generally pulled the wool over the eyes of their colleagues and the public. The authors speak in glowing terms about justices who achieve their ends through skullduggery and disparage justices who are ineffectual because they’re proud, priggish, wedded to precedent or fooled by their own rhetoric. According to Collins and Skover, “a Justice must be hypocritical and strive to appear objective, judicious, and collegial.” John Marshall, William J. Brennan Jr., William Rehnquist, Antonin Scalia and (usually) John Roberts make the grade while James Clark McReynolds, Felix Frankfurter, William O. Douglas (except in Griswold), Warren E. Burger, and Roberts in Obergefell don’t. Frankfurter draws particular scorn as “arrogant, combative, spiteful, and manipulative (but not in effective ways).”

 Of course, there is more, much more.  The full text of the review is here: The Judge, 26 Machiavellian Lessons

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FAN 166 (First Amendment News) Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy

[Earlier this month]  a representative from the American Civil Liberties Union saw her chance to speak about the First Amendment squashed by students chagrined by the actions of her employer.Virginia Gazette, Oct. 6, 2017 The website of the ACLU of Virginia contains a statement by Claire Guthrie Gastañaga, its Executive Director. That statement pertains to the recent controversy at William and Mary. Below are portions of that statement, including passages in red that were apparently contained in the original version but no longer exist in the current one.

Claire Guthrie Gastañaga

“The ACLU of Virginia was invited by the College of William & Mary Alma Mater Productions to speak to students on Sept. 27 about their First Amendment rights, and, particularly, their rights at protests and demonstrations. We were pleased to accept the invitation and looked forward to making the presentation and answering questions on a wide range of topics. We were disappointed that we didn’t get the chance to provide the information that the students asked us to present nor to answer the tough questions we expected the student organizers and audience members to ask. . . .”

“The ACLU of Virginia supports unequivocally the freedom of professors, students and administrators to teach, learn, discuss and debate or to express ideas, opinions or feelings in classroom, public or private discourse.”

“We also support the goals espoused by the demonstrators (ending white supremacy, achieving racial justice, elevating those who have been oppressed). It is more than disappointing, however, when the robust debate that should be the hallmark of the culture of inquiry on a college campus is disrupted by those who seek with their own voices or actions simply to silence others who took actions or hold views based on principles with which they disagree.”

 “Disruption that prevents a speaker from speaking, and audience members from hearing the speaker, is not constitutionally protected speech even on a public college campus subject to the First Amendment; it is a classic example of a heckler’s veto, and, appropriately, can be prohibited by a college student code of conduct as it is at William and Mary. As a government entity, a public college like William and Mary has an obligation to protect the freedom of the speaker to speak and not to allow one group of people to shout down or seek to intimidate other speakers or members of the audience who wish to hear the speaker from exercising their own free speech rights. This is true regardless of what individuals or groups are speaking, protesting or counter-protesting.” [This passage survives in a blog post by Sam Harris.] “The ACLU of Virginia has been and will continue to be unwavering in its commitment to campus free speech. We are equally committed to ensuring that all universities take appropriate steps to ensure that the environment on their campuses fosters tolerance and mutual respect among members of the campus community, and an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. . . . ” “What happened at William and Mary on Sept. 27 is a part of a larger national trend that is challenging campus leaders across the country to find the right formula for assuring that critical community conversations can take place in a culture of inquiry consistent with a true learning environment. Actions that bully, intimidate or disrupt must not be without consequences in any such formula.” [This passage survives in an Inside Higher Ed story by Jeremy Bauer-Wolf. Though that story contained a link to the passage in red quoted above, the contents of that link have apparently been changed since it no longer contains the lines quoted above.]

Bill Farrar of the VA ACLU

Deleted passages: By all accounts, the passages in red were contained in an earlier version of the ACLU’s statement but do not appear in the current version.

VA ACLU Responds: When asked about the above, Bill Farrar, Director of Strategic Communications, responded: “We revised our statement based on internal feeedback from our colleagues.” He agreed that the deleted passages no longer reflect the Virginia ACLU’s current position. When asked if the National ACLU was consulted, Mr. Farrar said it was not.

Hecklers shout down California attorney general 

This from Adam Steinbaugh over at FIRE: “Last week, Whittier College — my alma mater — hosted California’s Attorney General, Xavier Becerra, in a question-and-answer session organized by Ian Calderon, the Majority Leader of the California State Assembly.”

“They tried to, anyway. The event ended early after pro-Trump hecklers, upset about Becerra’s lawsuit against the Trump administration over DACA, continuously shouted slogans and insults at Becerra and Calderon. A group affiliated with the hecklers later boasted that the speakers were ‘SHOUTED DOWN BY FED-UP CALIFORNIANS” and that the “meeting became so raucous that it ended about a half hour early.'”

“The event, held in Whittier College’s Shannon Center theater, was free and open to members of the community, and featured introductions from both Whittier’s president and student body president. Becerra and Calderon were to have an hour-long question-and-answer session using audience questions randomly selected from a basket. As soon as they began the discussion, however, hecklers decked in ‘Make America Great Again’ hats began a continuous and persistent chorus of boos, slogans, and insults.”

“Video captured by an alumnus captures the difficulty of hearing the discussion”:

“Video uploaded by two of the hecklers, Arthur C. Schaper and Harim Uzziel, captures the entirety of the affair, complete with chanted slogans and insults, such as ‘lock him up,’ ‘build that wall,’ ‘obey the law,’ ‘respect our president,’ ‘Americans first,’ and ‘You must respect our president!’ It also captures audience members repeatedly asking the hecklers to stop, and campus security officials approaching the group. Another video posted by “We the People Rising” also captured much of the disruption”:

“Calderon asked the audience to hold applause or booing, remarking: ‘It’s important that we have a productive conversation here.’ Becerra said that he thought the First Amendment to be a “precious thing,” but said he doubted the audience could hear him speak. The event, scheduled for an hour, concluded after about 34 minutes.”

“Schaper, a conservative columnist, is known for leading disruptions targeting Democratic officials, and was recently charged with disrupting a public meeting. For example, he disrupted a congresswoman’s ‘Know Your Rights’ forum, intended to give information to undocumented immigrants. ‘It was offensive,’ Schaper told the San Gabriel Valley Tribune. ‘[The congresswoman] took an oath to uphold [the] Constitution, and now she’s sponsoring a town hall that teaches illegal aliens about rights they don’t have.’ . . . “

Coming Soon: The First Amendment in the Regulatory State — Research Roundtable Read More

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FAN 165 (First Amendment News) Major New First Amendment News, Analysis & History Website Launched

Prof. Stephen Solomon (credit: Sarah Solomon)

If you are interested in the First Amendment, be prepared to bookmark an invaluable new site: First Amendment Watch. This news, anlysis and history website is the brainchild of Stephen D. Solomon, New York University’s Marjorie Deane Professor at NYU’s Arthur L. Carter Journalism Institute, where he teaches First Amendment law.

Recall: Professor Solomon is the author of, among other works, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (First Amendment Salon video here and news story re his speech at History Book Festival event here.)

Managing Editor: Tatiana Serafin has covered issues of press freedom for various publications, including her latest “I, Journalist” for The Seventh Wave. She was a staff writer at Forbes and then co-editor of the magazine’s billionaire’s list, initiating coverage of billionaires in Eastern Europe and Central Asia. She continues as a Forbes Contributor and is an Adjunct Professor at Marymount Manhattan College.

The mission of the site is to document threats to the First Amendment’s freedoms of speech, press, assembly, and petition. First Amendment Watch will highlight threats to the freedom of expression as they arise and provide continuing updates as news develops. The most important element is the deep dives into legal and historical background that provides the perspective that helps readers gain a full understanding of today’s First Amendment conflicts.

Social media also play an important role in getting news message out to the public. (See FAW’s Facebook and Twitter links.) “We hope to have a strong social media presence,” said Solomon. “We want to be engaged with the community and create a site for people to visit and learn about important First Amendment news issues.”

→ The startup phase of First Amendment Watch is entirely funded by New York University as a nonpartisan project in the public interest.

Easy to Navigate Topical Tabs 

The site has seven tabs on its information bar:

  1. News Gathering
  2. Speech
  3. Libel
  4. Threats
  5. Censorship
  6. Assembly
  7. Privacy

Managing editor Tatiana Serafin

Each tab contains numerous links to relevant news, updates, analysis, opinion and historical materials. See, for example:

Profiles — news, analysis & historical backdrop — of Contemporary Controversies 

→ Considerable attention is given to some of the most pressing free speech issues of the day, as in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The entry for that case is titled  Discrimination or Free Speech? What’s At Stake in the Wedding Cake Conflict.

→ Another such entry is The Supreme Court Considers First Amendment Arguments in Gerrymandering Case, the reference being to the oral arguments in Gill v. Whitford. These entries contain links to: audio and video clips, news stories and opinion posts,  and lower court opinions and appellate briefs, among other things.

Make the Connection: Linking Today’s Controversies to Those of the Past

Symbolic Speech in Early America: Liberty Tree in colonial Boston

From Liberty Tree to Taking a Knee: America’s Founding Era Sheds Light on the NFL Controversy

“Symbolic speech as a form of protest, like taking a knee at a football game while others stand for the National Anthem, enjoys a long history in America. It’s been a powerful form of political expression going back to the protests in the colonies in the 1760s against British oppression. Various forms of symbolic expression—liberty trees, liberty poles, effigies of hated politicians, even the use of the number 45—brought multitudes into the political sphere and was critical in building opposition to British rule. Much of this symbolic expression was controversial and even offensive but a powerful form of protest then and now.” – By Stephen Solomon

Mapping Free Speech Controversies

There is also a Mapping First Amendment Conflicts link that pinpoints timely free speech controversies accordingly to geographical areas.  From small to big cities, from social media to the White House, First Amendment conflicts arise nearly every day. They can involve libel suits against a big media organization, an attempt by state legislators to restrict demonstrations, public officials blocking Twitter followers they don’t like, and much more. The endless challenges to freedom of expression raise vital questions of constitutional law and the place of free speech in a democratic society. All one has to do is click on the map icons to get brief descriptions of controversies large and small as well as links to more information.

Thus, if you click on the Washington State pointer, this pops up:

Assembly – Olympia, WA – 10/11/16 — description

A Republican State Senator introduced a measure aimed at criminalizing what he calls “economic terrorism.” It “would make protesting a class C felony should it cause any sort of “economic disruption” or “jeopardize human life and property.””  http://thehill.com/blogs/blog-briefing-room/306580-washington- 

Video Links 

There are some interesting video links on the site as well.  For example:

Future Plans 

Plans for the future involve invited comment from experts as well as original videos and podcasts.

And yes, for those of you who wish to support this website, there is a tab you can click on to donate to it. Though NYU provided startup funding,  the site can continue only with outside funding.

*  * * Other First Amendment Websites * * * 

History of Film Censorship Timeline

Prof. Laura Wittern-Keller

 

Over at FIRE’s First Amendment Library, they have just posted an impressive History of Film Censorship Timeline.

The timeline was created by Professor Laura Wittern-Keller, author of Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981 (2008) and The Miracle Case: Film Censorship and the Supreme Court (2008).

 

 

Scholarly Articles: One New, One Forthcoming  Read More

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FAN 164 (First Amendment News) 1917 Masses Case to be Reargued in Second Circuit — Floyd Abrams & Kathleen Sullivan to Argue Case

On November 6th the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Pattenthis on the occasion of the 100th anniversary of the case. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Second Circuit Chief Judge Robert Katzmann will introduce the event. Noted First Amendment lawyer Floyd Abrams will appear on behalf of Postmaster Patten (yes, he will represent the government) and Kathleen M. Sullivan (former Stanford Law dean and seasoned appellate litigator) will appear on behalf of Masses Publishing Co.

* * * *

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

Date & Locale: Friday, October 20, 2017 – New York University School of Law

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

  1. The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)
  2. The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)
  3. The State of Free Speech Doctrine in 1917: David Rabban (Texas)

Moderator: Michael McConnell (Stanford)

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

  1. Learned Hand’s Jurisprudence: Ed Purcell (New York Law School)
  2. The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)
  3. The Decision: Vincent Blasi (Columbia)

Moderator: Judge Robert Sack (Second Circuit)

Lunch Break – 12:30-1:30

Aftermath of the Masses decision1:45-3:15

  1. Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)
  2. Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)
  3. Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

Moderator: Jeremy Kessler (Columbia)

The Influence of Masses on Modern First Amendment Doctrine — 3:30-5:00

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

Moderator: Robert LoBue (Patterson Belknap Webb & Tyler)

Reception – 5:15-6:15 p.m.

More Controversy: The ACLU’s Defense of Free Speech  Read More