Category: Supreme Court

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

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

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

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

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

Commentaries 

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

* ** * * 

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

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

Senate Judiciary Committee Members 

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

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

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

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

Jim Newton of the LA Times

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

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

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

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

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Former Gorsuch clerks who went on to work for Supreme Court Justices — two of them serving this Term

If Judge Neil Gorsuch is confirmed, he will soon be working with some familiar faces — two of his former law clerks are currently clerking on the Court (for Justices Anthony Kennedy and Elena Kagan).

All in all, five sitting Justices have hired Gorsuch Clerks.

Justice Antonin Scalia hired more Gorsuch clerks (4) than any of his colleagues.

Here is the lineup of the 13 Gorsuch clerks who went on to clerk on the Supreme Court:

  • Antonin Scalia [4]  — Michael E. Kenneally (2016- then to Samuel Alito), Michael Kenneally (2015-16 Term), Eric C. Tung (2012-13 Term), Matthew S. Owen (2010-11 Term)
  • Samuel Alito [3] — Michael E. Kenneally (1st with Scalia), Lucas Walker (2015-16 Term), Michael H. McGinley (2014-15 Term)
  • Elena Kagan [2] — Gerard J. Cedrone (2016-17 Term), Jason C. Murray (2013-14 Term),
  • Clarence Thomas [2] — Katherine C. Yarger  (2013-14 Term), Allison B. Jones (2010-11 Term)
  • Sonia Sotomayor [1] — Jane E. Kucera (2011-12)
  • Anthony Kennedy [1] —  Alex J. Harris (2016-17 Term)
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FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule

 

Paul Gerlich & Erin Furleigh (credit: FIRE)

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

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

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

Judge Diana Murphy

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

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

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

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

Lisa Zycherman (one of Plaintiffs’ lawyers)

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

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

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

Ronald London (one of Plaintiffs’ lawyers)

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

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

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

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

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

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FAN 141 (First Amendment News) Judge Neil Gorsuch — the Scholarly First Amendment Jurist

Free speech works; it works better than any form of censorship or suppression; and in exercising vigorously, the truth is bound to emerge. — Neil Gorsuch (1986)

Last Saturday’s march was more a demand for the overthrow of American society than a forum for the peaceable and rational discussion of these people and events. — Neil Gorsuch (1987)

Judge Neil Gorsuch

Seattle — “Judge Gorsuch is a serious, accomplished jurist who will defend a robust First Amendment.” There is truth there, in David Keating‘s assessment of the First Amendment opinions of Judge Neil Gorsuch. As the epigraph quote reveals, there was a free-speech sentiment in the mix of the man that traced back at least to his college days at Columbia University. To draw again from that time: Columbia  University “has a responsibility to make the political, philosophical, and ethical experience here as diverse and varied as the cultural and ethnic experience,” he wrote.

If one scans what we now know of the arc of Judge Gorsuch’s views on the First Amendment and free expression, it is readily apparent than he has long and informed commitment to the First Amendment. Should that continue, and it seems likely to, he could well become the First Amendment point-person on the Court.

Wasn’t the First Amendment written for the explicit purpose of protecting dissenting voices, allowing them the freedom to ‘recruit’ others to their opinions? Don’t we call this the marketplace of ideas — implying that ideas are bought by converts and sold by believers, thus using the very language of recruitment? Free speech is dangerous to dictators because it promises to recruit opposition; effective free speech is the best recruiting policy. — Neil Gorsuch (1987)

The Judge as Scholar 

Whatever one thinks of Judge Gorsuch’s jurisprudence overall and his free-speech jurisprudence in particular, which is sketched out below, one thing is undeniable: he is jurist who values the scholarly virtues and someone who appreciates the value of nuance.  Moreover, there is a welcome clarity in his First Amendment free-expression opinions, which is unusual in a decisional law world bogged down by unnecessary ambiguity.

Professor Eugene Volokh (who co-clerked with Gorsuch at the Supreme Court) agrees: “Neil Gorsuch is an excellent judge, who consistently produces readable, careful, thoughtful, even scholarly opinions.”

Only in an atmosphere where all voices are heard, where all moral standards are openly and honestly discussed and debated, can the truth emerge. — Neil Gorsuch (1987)

Highlights of Free-Speech Opinions Authored by Judge Gorsuch 

Right of Petition: “We write today to reaffirm that the constitutionally enumerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private. Whatever the public significance or merit of Mr. Van Deelen’s petitions, they enjoy the protections of the First Amendment.” (Van Deelen)

More on the Right of Petition: “[T]he right of a private citizen to seek the redress of grievances is not limited to matters of ‘public concern . . . .” (Van Deelen)

The Promise of Self-Government: “The promise of self-government depends on the liberty of citizens to petition the government for the redress of their grievances. When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise.” (Van Deelen)

Right to Petition & the Sons of Liberty: “to petition the government for the redress of tax grievances . . . has been with us and clearly established since the Sons of Liberty visited Griffin’s Wharf in Boston. Defendants respond by pointing us again to the line of cases from Kansas district courts, arguing that it ‘muddied the water’ sufficiently that a reasonable official would not have known that private citizens have a First Amendment right to petition on private as well as public matters. But every case discussing the public concern test in the Supreme Court has made pellucid that it applies only to public employees.” (Van Deelen)

Public Employess & Matters of Public Concern: “The public concern test . . . was meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private citizens. To apply the public concern test outside the public employment setting would require us to rend it from its animating rationale and original context.” (Van Deelen)

Campaign Contribution Cases: “political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities.” (Riddle)

Level of Scrutiny in Campaign Contribution Cases: “the Court has yet to apply strict scrutiny to contribution limit challenges—employing instead something pretty close but not quite the same thing.” (Riddle)

First Amendment & Equal Protection Intersection: “Of course, all these teachings have come in the context of First Amendment challenges to contribution limits—and in this appeal we are asked to decide a Fourteenth Amendment claim. In the Fourteenth Amendment’s equal protection context, the Supreme Court has clearly told us to apply strict scrutiny not only to governmental classifications resting on certain inherently suspect grounds (paradigmatically, race) but also governmental ‘classifications affecting fundamental rights.'” (Riddle)

Defamation: “Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.” (Bustos)

Defamation & Misstatements: “But to say that the misstatement must be material only raises questions of its own — material to whom? And for what purpose? The answer to these questions takes us back to and can be found in the interest the American defamation tort is intended to protect — the plaintiff’s public reputation. Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff’s public reputation to the damage the truth would have caused. . . . By requiring a significant impact on the plaintiff’s public reputation when compared to the truth, the material falsehood requirement works as a screen against trivial claims.” (Bustos)

Parody & Defamation: “[Per the law in our Circuit,] the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy.”  (Mink)

Parody & Matters of Private Concern: “[T]he Supreme Court has yet to address how far the First Amendment goes in protecting parody. And reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern. One might argue, for example, that such a rule unnecessarily constitutionalizes limitations that state tort law already imposes. . . . Or that such a rule may unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesn’t compel. See, e.g., Catherine L. Amspacher & Randel Steven Springer, Note, Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs, 31 Wm. & Mary L.Rev. 701 (1990); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L.Rev. 601, 662 (1990) (arguing that the First Amendment does not “absolutely protect[] all verbal means of intentionally inflicting emotional distress, all forms of racial, sexual, and religious insults, so long as the offending communications do not contain false factual statements”).” (Mink)

“He was not an ideologue,” said M. Adel Aslani-Far, a former writer and editor for the [Columbia Spectator]. “At his core was that things should be thought through and presented and argued, not in a confrontational sense, but in the lawyer-judge sense.”

 First Amendment Free-Speech & Right of Petition Opinions Authored by Judge Gorsuch

  1. Riddle v. Hickenlooper, 742 F. 3d 922 (10th Cir., 2014) (Gorsuch, J. concurring)
  2. Bustos v. A & E Television Networks, 646 F.3d 762 (10th Cir. 2011) (libel and privacy)
  3. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) (Gorsuch, J. concurring) (searches of work product)
  4. Van Deelen v. Johnson, 497 F. 3d 1151 (10th Cir. 2007)

Free Expression-Related Opinion Authored by Judge Gorsuch 

  1. A.M. v. Holmes850 F.3d 1123 (10th Cir., 2016) (Gorsuch, J., dissenting) (contesting validity of arrest of 7th-grade student who traded fake burps in class)

 Free-Speech-Related Opinions in Which Judge Gorsuch Joined

  1. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (sex offender disclosure law uphelod over 1-A challenge)
  2. Cory v. Allstate Ins.583 F.3d 1240 (10th Cir., 2009) (denying defamation claim)
  3. Meshwerks, Inc. v. Toyota Motor Sales USA, Inc, 528 F. 3rd. 1258 (10th Cir., 2008) (applying “idea/expression dichotomy” in copyright law case)
  4. Alvarado v. KOB-TV, 493 F.3d 1210 (10th Cir. 2007) (rejecting emotional distress & privacy claims)
  5. Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) (rejecting right of privacy claim against media Ds.)

The above compilation was based in part on the case listings and analysis contained in David Keating’s Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics.

Commentators on Judge Gorsuch & His Free-Speech Jurisprudence

Marjorie Heins

Marjorie Heins: “However questionable his views may be on other civil rights and civil liberties issues, Judge Gorsuch’s opinions have demonstrated a firm commitment to First Amendment freedom of speech.”

“President Trump, who has frequently displayed his hostility to free speech and who reportedly has a very short attention span, probably did not read Judge Gorsuch’s First Amendment opinions; if he had, he might not have nominated him.”

David Keating

David Keating: “Judge Gorsuch’s record suggests he will be a strong defender of free speech rights if confirmed to the Supreme Court. He wrote or joined opinions on a wide variety of topics related to free speech, including campaign finance, petition clause and defamation cases. Each time, he ruled for free speech. He applies real scrutiny in constitutional challenges and is a terrific writer. Not only are his opinions a joy to read, they are clear.”

“It’s ironic that President Trump nominated a judge who wrote or joined four opinions in cases brought against the media. Each time Gorsuch ruled for the media defendants.”

News Items & Commentaries re Judge Gorsuch & Free Speech

  1. Aidan Quigley, At Columbia, Gorsuch blasted progressive protesters, defended free speech, Politico, Feb. 1, 2017
  2. Reporters Committee for Freedom of the Press, Special report on Supreme Court nominee Neil Gorsuch, Feb. 2017
  3. David Keating, Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech, The Insider, Jan. 27, 2017

The Court’s 2016-2017 First Amendment Free Expression Docket Read More

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FAN 140 (First Amendment News) Will Judge Hardiman be the nominee? A sketch for a First Amendment portrait

The talk in the air is thick: Third Circuit Judge Thomas Hardiman could be President Trump’s pick to fill the vacancy created by the death of Justice Antonin Scalia. Already much has been written about the Judge (see e.g., SCOTUSblog #1, SCOTUSBLOG #2, and Bloomberg-BNA), but what more might be added about his views on freedom of expression and the First Amendment?

Below is an sketch of his First Amendment views as expressed in B.H. v. Easton Area School District (3rd Cir. 2013), a case decided by the Third Circuit sitting en banc.

Judge Thomas Hardiman

Mary Catherine Roper of the ACLU of Pennsylvania argued on behalf of the Appellees, while while John E. Freund, III of King, Spry, Herman, Freund & Faul argued on behalf of the school district.

Focus on Alito’s Morse concurrence 

The issue in the case was was whether the First Amendment rights of middle school students were violtaed when the school district banned them from wearing “I ♥ boobies! (KEEP A BREAST)” braclets as part of a nationally recognized breast-cancer-awareness campaign.  The vote sustaining the First Amendment claim was 9-5, with Judge D. Brooks Smith writing for the majority and Judges Hardiman and Joseph Greenaway, Jr. writing the dissents.

In the back-and-forth between the majority and the dissenters, Justice Samuel Alito’s concurrence in Morse v. Frederick (2007) was referenced 51 times. Nonetheless, when the matter was presented to the Supreme Court, the School District’s petition was denied.

As the majority in Easton Area School District saw it, “Justice Alito’s concurrence, which it viewed as determinative, “did not permit the restriction of speech that could plausibly be interpreted as political or social speech.”

Judge Hardiman took exception. In his dissent, and in the Greenaway dissent he joined, Hardiman’s views as evidenced in both of those opinions focused on six basic points, which are summarized below:

  1. Justice Alito’s Morse concurrence was not dispositive: “The notion that Justice Alito‘s concurrence in Morse is the controlling opinion flows from a misunderstanding of the Supreme Court‘s ―narrowest grounds‖ doctrine as established in Marks v. United States, 430 U.S. 188 (1977). . . . [I]n the six years since Morse was decided, nine of ten appellate courts have cited as its holding the following standard articulated by Chief Justice Roberts in his opinion for the Court.”
  2. The Tinker precedent has limited constitutional vitality: “‘Since Tinker v. Des Moines Independent Community School Dist. (1969), every Supreme Court decision looking at student speech has expanded the kinds of speech schools can regulate.'”
  3. Lack of guidance for school officials: “The Majority‟s test leaves school districts essentially powerless to exercise any discretion and extends the First Amendment‟s protection to a breadth that knows no bounds. As such, how will similarly-situated school districts apply [the majority’s] amorphous test going forward?”
  4. What speech may be regulated? “[W]hat words or phrases fall outside of the ambiguous designation other than the ‘seven dirty words’?”
  5. How to judge the validity of the speech claims: “[H]ow does a school district ever assess the weight or validity of political or social commentary?”
  6. Slippery slope problems: “Applying the Majority‟s test, “I ♥ penises,” “I ♥ vaginas,” “I ♥ testicles,” or “I ♥ breasts” would apparently be phrases or slogans that school districts would be powerless to address. Would the invocation of any of these slogans in a cancer awareness effort fail to garner protection under the Majority‟s test?”

Judge Hardiman closed his dissent with this: “As this case demonstrates, running a school is more complicated now than ever before. Administrators and teachers are not only obliged to teach core subjects, but also find themselves mired in a variety of socio-political causes during school time. And they do so in an era when they no longer possess plenary control of their charges as they did when they acted in loco parentis.”

What might we infer?

So what does this case tell us about Judge Hardiman and his views of the First Amendment? Here are a few preliminary takes:

  1. He is a legal pragmatist: If his views in Easton Area School District reveal anything, they suggest that Judge Hardiman is a man with his eye very much focused on institutional needs.
  2. He favors bright line rules over open-ended ones: Where institutional norms are threatened, Judge Hardiman prefers bright-line guidance, even if it means denying a First Amendment claim.
  3. He has little interest in reviving certain Warren Court First Amendment precedents: While it is true that as a circuit judge he must honor Supreme Court precedent rather evade it, still, the tenor of his dissent strongly suggests that Judge Hardiman has little or no interest in extending the Tinker precedent.
  4. He is skeptical “political speech” labels. Tagging something as “political speech” is no talismanic pass to constitutional protection. Rather, as Judge Hardiman sees it, such claims must first prove their validity and then their worth.
  5. Narrow opinions are preferable to broad ones: Consistent with what is set out above, Judge Hardiman does not seem to be the kind of jurist who would feel comfortable with First Amendment opinions such as those in New York Times Co. v. Sullivan (1964) or United States v. Stevens (2010).

Bottom line: Don’t expect to find a First Amendment Brennan or Black or Kennedy or Roberts in Thomas Hardiman; he does not seem to have that much free-speech spunk.

 Even so, and to be fair, all of this is based on one case only, which may not be true to the full measure of the man.  For now, let’s wait and see if he gets the nod, and if so, I will then say more.

For more, see David Keating, Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics 

The University of Oregon Controversy

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community University of Oregon report (2016) (professor’s free-speech activity violated school’s racial-harassment policy)

This free-speech controversy has been brewing in the land that many believe has the most robust protection of any state in the nation — this thanks to a spate of state constitutional free-speech cases dating back to some opinions by Justice Hans Linde (see e.g., State v. Robertson (1982)).

Professor Nancy Shurtz

But all of that is coming into question on the very campus where Linde taught before he was elevated to the state court high bench.  It started with a report that a UO law professor, Nancy Shurtz, wore  black makeup on her face and hands at a Halloween costume party she hosted at her home for UO law students, former students, and faculty members.

Professor violated racial-harassment policy 

I intended to provoke a thoughtful discussion on racism in our society, in our educational institutions and in our professions. In retrospect, my decision to wear black makeup was wrong. It provoked a discussion of racism, but not as I intended. — Nancy Shurtz

Professor Shurtz’s conduct was deemed to have violated school’s discrimination policy. According to December 21, 2016 statement from the office of the Provost:

Though [our] report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies. Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.

Professor Shurtz was officially reprimanded; last semester her courses were cancelled. She is not teaching this semester but is scheduled to return in February.

→ The two lawyers who prepared the report were: Edwin A. Harnden and Shayda Z. Le.

→ Professor Shurtz criticized the report, which she said should not have been released: “This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light.”

→ An Open Letter from members of the Oregon Law faculty calling for colleague’s resignation

 → Lawrence Haun, Petition: Support Academic Freedom at the University of Oregon

U.O. law prof weighs in

Professor Ofer Raban

Writing in the Oregonian, first in November and then it late December, University of Oregon Law professor Ofer Raban led the criticism of the University’s action. In his first op-ed, Professor Raban wrote: “This regrettable Halloween event was a teachable moment, but it ended up teaching many wrong lessons. Surely, this was a moment to teach about racial sensitivity and awareness of history, and of what it means to live as a racial minority in this country. But it was also a moment to teach other valuable lessons for law students: Do not rush to judgment. Deliberate carefully, away from emotions running high. Consider all the relevant factors. And show compassion for human fallibility.

At a time of an emboldened pernicious racism, the refusal to recognize the distinction between malicious racism and a stupid but well-intentioned mistake is not only a moral and legal travesty, it is also fodder for the real enemies of racial equality.”

And then in response to the University’s report, he wrote that it “fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections. . . .”

“Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom.This is a sad day for the freedom of speech and expression at the University of Oregon.”

Volokh joins in

The University’s action also drew sharp criticism from UCLA Law Professor Eugene Volokh: “contrary to the university’s explicit assurances in its free speech policy, the university report shows that ‘[t]he belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’ would indeed be viewed as ‘grounds for its suppression.'”

Tucker Carlson & Professor Eugene Volokh

“[T]he report reasons that university professor free speech is limited by the so-called Pickering v. Bd. of Ed. balancing test, under which government employee speech is unprotected if ‘the State, as an employer, in maintaining the efficiency of its operations and avoiding potential or actual disruption’ outweighs ‘the employee’s interest in commenting on the matter of public concern.'”

“There is good reason to think that the university misapplied this test here, especially in light of lower court precedent (see, e.g., these posts by Prof. Josh BlackmanHans Bader, and Prof. Jonathan Turley, as well as Levin v. Harleston (2d Cir. 1992)). Given that universities are supposed to be a place for debate and controversy, the tendency of university professor speech to spark debate and controversy — even debate and controversy that many people find offensive or disquieting — shouldn’t strip it of protection in a university community, even if it might be seen as doing so in, say, a police department. But the Pickering test is notoriously mushy, as such “balancing” tests tend to be, so I’ll set it aside here.”

See Professor Volokh being interviewed by Fox’s Tucker Carlson

U.O. President responds 

In light of such criticisms, the University’s President Michael H. Schill (who is a law professor) issued a response, which in part reads:

“When Professor Shurtz invited her two classes to her home for a Halloween party on October 31 and dressed up wearing blackface, she created a conundrum that is the stuff of a very difficult law school examination question. Two very important principles were potentially in conflict—the right of students to be free from racial harassment and the right of faculty members to exercise free speech. A law firm that the university hired to do an impartial investigation of the matter interviewed students and faculty members who were at the party and made a factual finding that at least some of the students felt compelled to attend their professor’s party and that they would potentially suffer negative consequences if they left early, despite being deeply offended and affronted by Professor Shurtz’s costume and its strong connotations of racism. The investigators made a factual finding that the behavior by Professor Shurtz constituted racial harassment under university policy V.11.02.

President Michael Schill

“. . . .As I consider the case of Professor Shurtz, I have to admit I am torn. I believe that freedom of speech is the core value of any university. When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university. . . .”

“But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds. Instead, most of us recognize that speech rights are extremely important, but they also fall on a continuum. For whatever it is worth, I personally am fairly close to the end of the spectrum that believes speech should be maximally protected. But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the ‘N’ word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future. . . .”

“The case against free speech”

 Brian Leiter, The Case Against Free Speech, Sydney Law Review (2016)

Abstract: Free societies employ a variety of institutions in which speech is heavily regulated on the basis of its content in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Of course, three differences between courts and the polity at large might seem to counsel against extending that approach more widely.

Professor Brian Leiter

First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not.

Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity.

Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be.

I argue that only the first of these — the ‘Problem of the Epistemic Arbiter’ as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing ‘freedom of speech’ like ‘freedom of action’: speech, like everything else human beings do, can be benign or harmful, constructive or pernicious. Thus, the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimise its very real harms, without undue cost to its positive values. In particular, I argue against autonomy-based defences of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech, but about institutional competence.

I offer some reasons — from the Marxist ‘left’ and the public choice ‘right’ — for being sceptical that capitalist democracies have the requisite competence and make some suggestive remarks about how these defects might be remedied.

Dorf & Tarrow on Fake News & the First Amendment

Michael Dorf & Sidney Tarrow, Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism, SSRN (Jan. 26, 2017)

Abstract:  Constitutional law, technological innovations, and the rise of a cultural “right to know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness” — that is, falsehoods with the ring of truth, diffused through new forms of communication — threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.

Forthcoming Books Read More

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FAN 139 (First Amendment News) Gov. Cuomo turns to Floyd Abrams for First Amendment Help

Gov. Cuomo has hired prominent First Amendment lawyer Floyd Abrams to defend him against a federal lawsuit challenging a new law that requires politically active non-profit organizations to publicly disclose their donors.N.Y. Daily News, Jan. 23, 2017

Seattle. Yes, it’s true: Floyd Abrams, the nation’s preeminent First Amendment lawyer and author of the forthcoming The Soul of the First Amendment is defending two government officials against a claim of a First Amendment violation.

Floyd Abrams

The lawsuit was brought by Citizens Union. It claims that a New York ethics law violates First Amendment protections of free speech. It names Gov. Cuomo and state Attorney General Eric Schneiderman as defendants.

According to the New York Daily News, Mr. Abrams is representing the Governor thought it is “unclear how much Abrams and his firm are being paid since no contract has been filed yet with the state controller’s office. A Cuomo spokesman said the details with Abram’s firm are still being worked out.”

When I asked about his involvement in the case, Mr. Abrams said:  “I have long thought — and so has the Supreme Court — that more disclosure of who is spending significant sums of money to persuade the public who to vote for and how to view  public policy issues is not only not violative of the First Amendment but significantly pro-First Amendment in its impact. There are, to be sure,  exceptions to this when the identification of speakers will lead to threats, harassment or the like  (and such an exception is in the New York law) but as a general proposition more sunlight about such matters is not only good policy but consistent with well established First Amendment law.”

This from Professor Richard Hasen: “I think Floyd Abrams recognizes that campaign finance disclosure serves a valuable democratic function in helping voters make informed decisions in elections. I am pleased he has taken on this case.”  (See also Richard Hasen, Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements, Election Law Blog, Jan. 4, 2017)

The N.Y. Ethics Law

As set out in the Plaintiffs’ complaint, Section 172-e of the New York ethics law ‘mandates the public disclosure of all donors and donations to a 501(c)(3) in excess of $2,500 whenever that organization makes an ‘in-kind donation” of over $2,500 to certain 501(c)(4)s engaged in lobbying activity. N.Y. Exec. Law § 172-e[1][a], [d], [2]. An ‘in- kind donation’ is defined as ‘donations of staff, staff time, personnel, offices, office supplies, financial support of any kind or any other resources.’ N.Y. Exec. Law § 172-e[1][b].

Randy M. Mastro, lead counsel for Plaintiffs

“Section 172-e requires disclosure reports to be filed with the Department of Law within thirty days of the close of a reporting period. The disclosures must include:

(i) the name and address of the covered entity that made the in‐kind donation;
(ii) the name and address of the recipient entity that received or benefitted from the in‐kind donation;

(iii) the names of any persons who exert operational or managerial control over the covered entity. The disclosures required by this paragraph shall include the name of at least one natural person;

(iv) the date the in‐kind donation was made by the covered entity;

(v) any donation in excess of two thousand five hundred dollars to the covered entity during the relevant reporting period including the identity of the donor of any such donation; and

(vi) the date of any such donation to a covered entity.”

“Section 172-f requires 501(c)(4)s to disclose publicly donations over $1,000—including the donor’s identity and the amount of the donation—whenever the organization makes ‘expenditures for covered communications’ totaling over $10,000 in a calendar year. N.Y. Exec. Law § 172-f[1][a], [2]-[3].”

First Amendment Challenges

In Citizens Union v. Governor of New York the Plaintiffs make the following First Amendment arguments:

  • “Nonprofit Organizations Like Citizens Union And Citizens Union Foundation Depend On Donors To Function, Including Donors Who Choose To Give Anonymously To Support Speech On Matters Of Public Concern.”
  • “On Their Face, Sections 172-e And 172-f Substantially Burden The Rights Of Organizations Like Plaintiffs And Of Their Donors.”

“In order to avoid harsh penalties, including fines and revocation of its registration, under Section 172-e, Citizens Union Foundation and similarly situated 501(c)(3)s must disclose publicly all donations over $2,500 whenever they make an in-kind donation of more than $2,500 to certain 501(c)(4)s engaged in lobbying activity. Not only does this requirement directly chill speech by 501(c)(3)s, but it imposes significant compliance costs on covered organizations. . . . Section 172-e simply has nothing to do with protecting against quid pro quo corruption or promoting transparency in campaign finance. These disclosure requirements thus reach much farther than the disclosure requirements upheld in Citizens United, which were targeted at “electioneering communications” that were related to electoral politics.”

“Requiring these disclosures does not meaningfully advance the government’s interest in preventing quid pro quo arrangements with public officials, promoting transparency in campaign finance, or rooting out corruption. Unlike those upheld in Citizens United, the disclosures here are not linked with an informational interest in ‘election-related’ financing that may justify disclosures pertaining to electioneering communications.”

 “The law seems to be a solution in search of a problem and mainly serves to curtail the work of organizations like ours which seek to promote the public good,” said Dick Dadey, Executive Director. 

Plaintiffs’ Counsel 

Three Gibson Dunn & Crutcher lawyers from its New York offices are representing the Plaintiffs. They are:

Related: FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU, Aug. 31, 2016

Commentaries on the “Slants” Case

  1. Ronald Abrams, A Review of The Supreme Court’s Questions And Comments In ‘Slants, Forbes, Jan. 20, 2017
  2. Ken Jost, Justices Set to OK Offensive Trademarks?, Jost on Justice, Jan. 23, 2017
  3. Amy Howe, Argument analysis: Justices skeptical of federal bar on disparaging trademarks, SCOTUSblog, Jan. 19, 2017
  4. Steven Mazie, Free expression vs offensive speech at the Supreme Court, The Economist, Jan. 19, 2017
  5. Cristian Farias, Who’s To Say The Word ‘Slants’ Offends Asians? The Supreme Court, That’s Who, Huffington Post, Jan. 19, 2017
  6. Adam Liptak, Justices Appear Willing to Protect Offensive Trademarks, New York Times, Jan. 18, 2017
  7. Tony Mauro, In ‘Slants’ Case, Justices Skeptical of Ban on Disparaging Trademarks, National Law Journal, Jan. 18, 2017
  8. Robert Barnes, Can disparaging trademarks be denied? The Supreme Court is skeptical, Washington Post, Jan. 18, 2017
  9. Ruthann Robson, Court Hears Oral Arguments in Lee v. Tam, First Amendment Challenge to disparaging trademark ban, Constitutional Law Prof Blog, Jan. 18, 2017

 John Shu, Lee v. Tam: “Disparaging” Trademarks & the First Amendment, The Federalist Society, Jan. 17, 2017 (YouTube)

FIRE Celebrates 50th Anniversary of ‘Keyishian’ Decision Read More

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FAN 138 (First Amendment News) Forthcoming book: “Unsafe Space: The Crisis of Free Speech on Campus”

A call to arms for studnets and academics who want to turn the tide on campus censorshipNadine Strossen 

Tom Slater

Seattle. He is the  deputy editor at Spiked, a British Internet magazine focusing on politics, culture and society from a libertarian viewpoint. His name is Tom Slater and he is the editor of a forthcoming book entitled Unsafe Space: The Crisis of Free Speech on Campus (Palgrave Macmillan, May 25, 2016). Here you can see young Slater speaking with calculated fervor on British TV while attacking those who would censor campus speech.

Here is the publisher’s summary of the book consisting of ten essays:

The academy is in crisis. Students call for speakers to be banned, books to be slapped with trigger warnings and university to be a Safe Space, free of offensive words or upsetting ideas. But as tempting as it is to write off intolerant students as a generational blip, or a science experiment gone wrong, they’ve been getting their ideas from somewhere. Bringing together leading journalists, academics and agitators from the US and UK, Unsafe Space is a wake-up call. From the war on lad culture to the clampdown on climate sceptics, we need to resist all attempts to curtail free speech on campus. But society also needs to take a long, hard look at itself. Our inability to stick up for our founding, liberal values, to insist that the free exchange of ideas should always be a risky business, has eroded free speech from within.

To give the book added spark, in his introduction Slater (a Brit) draws his inspiration from the Berkley free-speech movement of 1964 when students rebelled against the “university bureaucrats who severely limited students’ ability to speak freely and organize politically on campus.”

↓ Below is the list of contributors (many from Spiked): ↓

Introduction, Tom Slater, Reinvigorating the Spirit of ’64

Chapter 1: Brendan O’Neill, From No Platform to Safe Space: A Crisis of Enlightenment

Chapter 2: Nancy McDermott, The ‘New’ Feminism and the Fear of Free Speech

Chapter 3: Tom Slater, Re-Educating Men: The War on Lads and Frats

Chapter 4: Joanna Williams, Teaching Students to Censor: How Academics Betrayed Free Speech

Chapter 5: Greg Lukianoff, Trigger Warnings: A Gun to the Head of Academia

Chapter 6: Sean Collins, BDS: Demonising Israel, Destroying Free Speech

Chapter 7: Jon O’Brien, Debating Abortion on Campus: Let Both the Pro and Anti Sides Speak

Chapter 8: Peter Wood, A Climate of Censorship: Eco-Orthodoxy on Campus

Chapter 9: Tom Slater, Terrorism and Free Speech: An Unholy Alliance of State and Students

Chapter 10: Frank Furedi, Academic Freedom: The Threat from Within

Conclusion: Tom Slater, How to Make Your University an Unsafe Space

If you’re really serious about challenging prejudice, censorsing bigots is the worst thing you can possibly do. . . . It effectively buries our heads in the sand. It stops us from locating those views, arguing against them, and then discrediting them in the public forum. Censorship makes these problems worse, not better. — Tom Slater

→ Lee v. Tam (the “Slants” case) to be argued today (see here re Washington Post interview with the bands’ members)

From SCOTUSblog: “Argument analysis: Merchants seem to fall short in challenge to New York statute banning credit-card ‘surcharges'”

Professor Ronald Mann

This from Professor Ronald Mann writing in SCOTUSblog: “The oral argument . . . in Expressions Hair Design v. Schneiderman brought the justices face to face with the battle between merchants and credit-card networks over the “interchange” fees that merchants pay when they accept cards in retail transactions. The dispute that got the fees before the justices involves a New York statute that says that ‘[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.’ The petitioner, Expressions Hair Design (leader of the group of merchants challenging the provision), argues that the statute violates the First Amendment because it limits a merchant’s right to describe the extra costs imposed on purchasers using credit cards as ‘surcharges.'”

“For a case into which so many groups poured so much effort (23 amicus briefs), the argument must have been deeply frustrating, because the most prominent thing not on display was any strong inclination to address the case head-on. Three themes dominated the argument. The first was a considered refusal of the parties to join issue about what the statute actually means. Representing the merchants, Deepak Gupta insisted that the statute prevents merchants from posting separate cash and credit prices and that the state of New York has no justifiable reason to do so. Representing the state, Steven Wu insisted that the statute is aimed only at “bait-and-switch” pricing – when a retailer posts a single price but then asks for a higher price at the register for customers who pay with cards. . . .”

David Cole: “Donald Trump vs the First Amendment”

The ACLU’s David Cole

That is the title of a new piece just published in The Nation.  David Cole, the ACLU’s new National Legal Director, took First Amendment aim at President-elect Donald Trump. Here are a few excerpts:

“Donald Trump has no particular reverence for the First Amendment. He may not even understand it very well. During the campaign, Trump said he would “open up” libel law so that newspapers could more easily be sued. As president-elect, he tweeted that those who burn the American flag should be stripped of their citizenship and jailed. These threats are constitutional nonstarters. There is no federal libel law to “open up”: Libel is a matter of state law, and to the extent it is governed by federal law, it’s the First Amendment that governs. Similarly, the Supreme Court held in 1989 (in a case I litigated) that the First Amendment protects flag-burning and ruled in 1967 that citizenship is a constitutional right that cannot be taken away as punishment under any circumstances—not for murder, not for treason, and certainly not for flag-burning.”

“. . . The First Amendment itself serves a critical checking function, by safeguarding the rights of citizens to criticize government officials, to associate with like-minded citizens in collective action, and to petition the government for redress of grievances. It is this First Amendment tradition that protects the institutions we will rely on to push back against Trump’s abuses.”

“The press has its own express protection in the First Amendment, and it will play a critical role in bringing abuses to light and arming citizens with information and arguments. Think Watergate. The academy, protected by the doctrine of academic freedom, will also be essential—questioning Trump’s policies, providing empirical evidence to refute his assertions, and educating citizens about the value of our civil liberties and civil rights. And the nonprofit sector, including organizations such as Planned Parenthood, the NAACP Legal Defense Fund, the ACLU, the American Immigration Lawyers Association, 350.org, and the groups that comprise the Movement for Black Lives, will be a focal point for organizing, educating, litigating, and inspiring resistance. If we are saved, it will be thanks to actions by citizens exercising their First Amendment rights against Trump. . .”

Massaro, Norton & Kaminski on Artifical Intelligence and the First Amendment 

Professor Toni Massaro

The article is entitled Siri-ously 2.0: What Artificial Intelligence Reveals about the First Amendment. It is scheduled to be published in the Minnesota Law Review. The authors (three tech-savvy and free-speech- informed scholars) are Toni Massaro, Helen Norton, and Margot Kaminski. Here is the abstract from this cutting-edge article:

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Professor Margot Kaminski

Courts and commentators wrestling with free speech problems increasingly focus not on protecting speakers as speakers but instead on providing value to listeners and constraining the government’s power. These approaches to free speech law support the extension of First Amendment coverage to expression regardless of its nontraditional source or form. First Amendment thinking and practice thus have developed in a manner that permits extensions of coverage in ways that may seem exceedingly odd, counterintuitive, and perhaps even dangerous. This is not a feature of the new technologies, but of free speech law.

Professor Helen Norton

The possibility that the First Amendment covers speech by strong AI need not, however, rob the First Amendment of a human focus. Instead, it might encourage greater clarification of and emphasis on expression’s value to human listeners — and its potential harms — in First Amendment theory and doctrine. To contemplate — Siri-ously — the relationship between the First Amendment and AI speech invites critical analysis of the contours of current free speech law, as well as sharp thinking about free speech problems posed by the rise of AI.

 Related & Forthcoming: Collins & Skover, Robotica: The Discourse of Data (Cambridge University Press, 2018).

Forthcoming Books Read More

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FAN 137 (First Amendment News) Backpage.com removes adult content due to government censorship — vows to fight First Amendment battles

Seattle. This from a press release from Backpage.com:

As the direct result of unconstitutional government censorship, Backpage.com has removed its Adult content section from the highly popular classified website, effective immediately. For years, the legal system protecting freedom of speech prevailed, but new government tactics, including pressuring credit card companies to cease doing business with Backpage, have left the company with no other choice but to remove the content in the United States.

As federal appeals court Judge Richard Posner has described, the goal is either to “suffocate” Backpage out of existence or use the awesome powers of the government to force Backpage to follow in the footsteps of Craigslist and abandon its Adult advertising section. Judge Posner described such tactics as “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.” [Backpage.com v. Dart, 7th Cir., 2015]

“It’s a sad day for America’s children victimized by prostitution,” said Dr. Lois Lee, Founder and President, Children of the Night, a leading national hotline and shelter program for victims of sex trafficking based in Los Angeles. “Backpage.com was a critical investigative tool depended on by America’s vice detectives and agents in the field to locate and recover missing children and to arrest and successfully prosecute the pimps who prostitute children.” She added, “The ability to search for and track potentially exploited children on a website and have the website bend over backwards to help and cooperate with police the way Backpage did was totally unique. It not only made law enforcement’s job easier, it made them much more effective at rescuing kids and convicting pimps.”

Backpage.com was created thirteen years ago by Jim Larkin and Michael Lacey, through their newspaper company, New Times Media, to compete with Craigslist, the nation’s largest online classified ad platform. Larkin and Lacey were pioneers in independent journalism, establishing Village Voice Media in 1970 to provide alternative news coverage of the Vietnam war and later served as editor and publisher of twenty weekly newspapers.

As The Center for Democracy and Technology and the Electronic Frontier Foundation have observed, the Senate subcommittee has engaged in an “invasive, burdensome inquiry into Backpage.com’s editorial practices [that] creates an intense chilling effect, not only for Backpage but for any website operator seeking to define their own editorial viewpoint and moderation procedures for the third-party content they host.” [amicus brief below]

This will not end the fight for online freedom of speech. Backpage.com will continue to pursue its efforts in court to vindicate its First Amendment rights and those of other online platforms for third party expression.

 Appellants’ Reply Brief, Ferrer v. Senate Permanent Subcommittee on Investigations (D.C. Cir., oral arguments pending)

Lawyers for Backpage.com re Appellants’ Reply Brief:

  • Steven R. Ross & Stanley M. Brand (Akin Gump Strauss Hauer & Feld)
  • Robert D. Luskin, Stephen B. Kinnaird, & Jamie S. Gardner (Paul Hastings)
  • Robert Corn-Revere & Ronald London (Davis Wright Tremaine)

Amicus Brief on behalf of DKT Liberty Project, Cato Institute & Reason Foundation (supporting Appellant) (counsel: Jessica Ring Amunson & Joshua M. Parker (Jenner & Block))

Jessica Ring Amunson, Joshua M. Parker, Ilya Shapiro, & Manuel S. Klausner, Ferrer v. Senate Permanent Subcommittee on Investigations, Cato Institute, Nov. 22, 2016

Related links

Cert Petition: Case to Watch 

The case is is McKay v. Federspiel in which a cert. petition has just been filed in the Supreme Court.  The issues in the case are:

1. Whether a law criminalizing protected speech or conduct implies a threat to prosecute such that a pre-enforcement challenge is proper without any additional showing that enforcement is imminent.

2. Whether, absent extenuating circumstances, there is a constitutional right to make a public recording of courtroom proceedings.

Summary of Facts: the chief judges of Saginaw County, Michigan issued a joint administrative order limiting the use of electronic devices in courtrooms and court-related facilities in the Saginaw County Governmental Center. Robert McKay, a resident of neighboring Tuscola County who states that he wishes to record law enforcement officers’ and judges’ activities inside the Governmental Center, contends that the administrative order violates his federal constitutional rights.

Sixth Circuit opinion (here)

Lead counsel for Petitioner: John J. Bursch 

Andy Hoag, Federal judge: Saginaw County cellphone ban not unconstitutional; preliminary injunction denied, Michigan Live, April 18, 2014

[ht: A.L.]

Court Denies Cert. in Internet Communications Case

On Monday the Court denied cert in Flytenow, Inc. v. Federal Aviation Administration. One of the issues in the case was: whether the circuit court erred in holding that the Federal Aviation Administration could, consistent with the First Amendment, lawfully discriminate against content-based Internet communications because of the message conveyed and the means chosen by pilots to convey it.

[ht: Art Spitzer]

Public Employee: No 1-A protection for racial epithet Read More

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FAN 136 (First Amendment News) 2016: The Year in Review, including “the best of”

This is the 43rd and last FAN post for this year. All the hyperlinked posts for this year are listed below by month. Also below are some highlights of the past year along with a few “best ofs” of 2016:

Selected Highlights

Deaths: Justice Antonin Scalia. See FAN 97.1: Justice Scalia Dies — Free-Speech Legacy (Feb. 13, 2016)

Supreme Court: The Court decided two First Amendment free speech cases:

Retirements: Steven Shapiro, the ACLU’s national legal director

Biggest First Amendment issue of 2016: Campus free-speech controversy (yet again!)

Beta launch of FIRE’s online First Amendment Library (Nov. 14, 2016)

Man of the Year

John Ellison, University of Chicago Dean of Students

Letter to the Class of 2020

Woman of the Year

Rhode Island Governor Gina Raimondo

vetoes overbroad “revenge porn” bill

___________________________________________

The First Amendment & The Best of 2016

unknown

 Best Supreme cert. petition: Deepak Gupta, brief in Expressions Hair Design v. Schneiderman

 Best Supreme Court amicus briefs:

Best Supreme Court oral argument: Thomas Goldstein in Heffernan v. City of Patterson (2016)

Best lower court First Amendment opinionWomen’s Health Link, Inc. v. Fort Wayne Public Transportation Corp. (7th Cir., 2016, per Posner, J.)

Best lower court amicus briefWikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

 Best new First Amendment organization: Knight First Amendment Institute (see here)

 Best group defending First Amendment rightsFoundation for Individual Rights in Education (FIRE)

 Best report: PEN America, And Campus for All: Diversity, Inclusion & Free Speech at U.S. Universities

 Best speech: Geoffrey Stone, “Free Speech on Campus: A Challenge of Our Times

 Best interview: Nico Perriono, The Daughters: Carlin, Pryor & Bruce Speak OutSo to Speak

 Best book: Stephen Solomon’s Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (see Salon discussion here)

Best documentaryCan We Take a Joke?

Best essays:

 Best law review articles:

Best scholarly conferenceBrooklyn Law Symposium: “Free Speech Under Fire — The Future of the First Amendment” (see also here)

Best conference for practitionersAbrams Institiute Conference on Commercial Speech (June 13, 2016)

Best new First Amendment blogIn A Crowded Theater

Best event: Newseum Institute: Pear v. United States (see also here)

Best funder of First Amendment:  John S. and James L. Knight Foundation (see here)

Best supporter of the First Amendment: Flying Dog Beer (see here and here)

→ The Year in Review: FAN Posts for 2016 ← 

January

FAN 92: Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition (Jan. 6, 2016)

FAN 93: “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer (Jan. 13, 2016)

FAN 94: Brooklyn Law School to Host Symposium: “Free Speech Under Fire — The Future of the First Amendment” (Jan. 20, 2016)

FAN 95: “Fifty Shades of Grey” too Blue for Idaho? (Jan. 27, 2016)

February

FAN 96: Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture (Feb. 3, 2016)

FAN 97: Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern? (Feb. 10, 2016)

FAN 98: The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive? (Feb. 17, 2016)

FAN 99: Welcome to the Marketplace of Ideologies — Where Ideas go to Die (Feb. 24, 2016)

March

FAN 100: FIRE Spreads — Group to Launch Online First Amendment Library (March 9, 2016)

FAN 101: Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co. (March 16, 2016)

FAN 102: Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker (March 23, 2016)

April

FAN 103: Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era (April 6, 2016)

FAN 104: Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center (April 13, 2016)

FAN 105:  Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech” (April 20, 2016)

FAN 106:  The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive (April 27, 2016)

May 

FAN 107:  FTC’s Power to curb misleading ads remains intact (May 4, 2016)

FAN 108: Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play (May 11, 2016)

FAN 109: Abrams Institute to Host Event on Commercial Speech (May 18, 2016)

FAN 110:  Steve Shapiro to Step Down as ACLU’s Legal Director (May 25, 2016)

June

FAN 111: Flying Dog Brewery Launches First Amendment Society (June 1, 2016)

FAN 112:  “Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet” (June 8, 2016)

FAN 113: “Abrams Court” Breaks with Tradition & Allows Cameras in Courtroom (June 22, 2016)

FAN 114: 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied (June 29, 2016)

July

FAN 115: Profile: Jameel Jaffer to Head New Knight First Amendment Institute (July 6, 2016)

FAN 116: Farber on Scalia & the Abortion Protest Cases (July 13, 2016)

FAN 117: Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law (July 20, 2016)

FAN 118: University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents (July 27, 2016)

August

FAN 119: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 17, 2016)

FAN 120: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 24, 2016)

FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU (Aug. 31, 2106)

September 

FAN 122: Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine (Sept. 7, 2016)

FAN 123: When you think of free speech, think of “45” — New book by Stephen Solomon (Sept. 13, 2016)

FAN 124:  Ellen DeGeneres raises First Amendment defense in defamation case (Sept. 21, 2016)

FAN 125: Forthcoming book spotlights First Amendment freedom & LGBT equality (Sept. 28, 2016)

October

FAN 126: Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times” (Oct. 5, 2016)

FAN 127: Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist” (Oct. 12, 2016)

FAN 128:  Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond (Oct. 19, 2016)

FAN 129: A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press (Oct. 26, 2016)

November 

FAN 130: “Porn Panic” Prompts Pushback (Nov. 2, 2016)

FAN 131: Forthcoming: Chemerinsky & Gillman on the importance of free speech on college (Nov. 10, 2016)

FAN 132: FIRE Launches First Amendment Online Library (Nov. 16, 2016)

FAN 133: Slants trademark case might be decided on statutory grounds (Nov. 23, 2016)

December

FAN 134:  “Anti-Semitism Awareness Act” ignites First Amendment controversy  (Dec. 7, 2016)

FAN 135: “Protect the Flag Act” Introduced in Congress” (Dec. 14, 2016)

→ Year in Review: FAN Posts for 2015 ←

 FAN 91: The Year in Review, including “the best of” (Dec. 30, 2015)

2

FAN 135.1 (First Amendment News) First Amendment Salon: Jess Bravin Interviews ACLU’s David Cole

1a_salon_featured

The last First Amendment Salon has just been posted. It involved a dialogue between Jess Bravin (Supreme Court correspondent for the Wall Street Journal) and David Cole (Georgetown Law Professor and incoming National Legal Director of the ACLU).

The Salon, the eleventh, took place on December 8th at the law offices of Levine Sullivan Koch & Schulz in Washington,  D.C. and was video cast live to their offices in New York City.

The event was kindly filmed and audio recorded by the Foundation for Individual Rights in Education (FIRE), this in partnership with the Salons. The Salons also work in partnership with the Floyd Abrams Institute for Free Expression.

Thanks to the folks at FIRE, the Salons will now be available in podcast and video form and on various platforms:

  • David Cole & Jess Bravin Salon: podcast available here on FIRE’s So to Speak site.
  • David Cole & Jess Bravin Salon: podcast available here on iTunes
  • David Cole & Jess Bravin Salon: podcast available here on SoundCloud
  • David Cole & Jess Bravin Salon: podcast available here on Stitcher
  • David Cole & Jess Bravin Salon: video available here on First Amendment Library
  • David Cole & Jess Bravin Salon: video available here on YouTube
Anthony Dick raises a question

Anthony Dick raises a question regarding compelled expression

Complimentary beverages were kindly provided by Flying Dog Beer.