Category: Supreme Court

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FAN 188 (First Amendment News)UW law profs release letter re applicable law governing security fees on college campuses

The protections of the First Amendment are not limited to liberals, or conservatives, or people with good ideas.The principle at issue here is not a new one. Time and again, during the difficult days of the civil rights movement, the courts held that the government cannot limit or burden speech because it is likely to provoke others to attack a speaker or his or her supporters. It was that principle that protected James Edwards when he marched to the state capitol in Columbia, South Carolina, the Reverend B. Elton Cox when he marched to the state capitol in Baton Rouge Louisiana, John Lewis when he marched to Montgomery, Alabama, Dick Gregory when he marched to the home of Mayor Daley in Chicago Illinois, and Charles Evers and Henry Aaron when they wanted to speak at the University of Mississippi and Mississippi State. However much Mr. Gibson’s views may differ from those of the civil rights heroes who established this principle, the College Republicans are entitled to invoke that same principle when he speaks at the University of Washington. — UW Law Professors’ Letter 

Skirmish at UW Patriot Prayer event (credit: Oregon.live)

The letter below was endorsed by members of the faculty of the Universty of Washington School of Law and was submitted to the President of the University, Ana Mari Cauce. The controversy that prompted the letter involved the University’s attempt to impose a fee of at least $17,000 on the College Republicans, this in connection with an event hosted by them on February 10, 2018. The group invited  Joey Gibson, a controversial speaker who heads an organization known as Patriot Prayer, to speak on that date. 

The University of Washington now plans to change its protocol regarding student-hosted events so that student organizations will not be charged for any security measures needed to protect the students, an invited speaker, or other guests from counter-protesters.

I thought this letter, prepared largely by Professor Eric Schnapper and endorsed by 22 others (including myself), was sufficiently important to post it in its entirety, including endnotes. The letter makes a strong case for First Amendment protection. Equally important, it also reveals how in the past First Amendment law was invoked to protect minority rights in contexts where unruly individuals or crowds sought to silence civil rights demonstrators or where fines or fees were imposed on civil rights groups.  

Finally, the UW Law letter provides an informative guide to much of the existing law concerning free speech rights and security fees. In that regard, it should be useful to college administrators, lawyers representing colleges, lawyers representing students and speakers, and to student organizations in general, among others.

* * * * * * 

April 4, 2018

Dear President Cauce:

President Ana Mari Cauce

We write to urge modification of the policy of the University of Washington regarding the imposition of fees for security measures taken in connection with events on campus.  As now written, the policy provides that the fee charged to a student group or other host can be based in part on the security measures needed to protect that host organization, or its guests, from possible attack by opponents who object to the views of the organization or of a speaker invited by that organization.[1]  The University is currently seeking to impose a fee of at least $17,000 on the College Republicans, in connection with an event hosted by that group on February 10, 2018, at which the invited speaker was Mr. Joey Gibson, who is the head of an organization called Patriot Prayer.  The constitutionality of that proposed fee is currently the subject of litigation pending in federal district court, and that court has already made a preliminary determination that the University’s policy is likely to be held unconstitutional.

We concur in the federal court’s preliminary determination and strongly urge you to voluntarily modify the University’s policy rather than litigating this matter further.  Specifically, we recommend that you modify the policy to preclude the imposition of any fee for security measures taken to protect a host organization, or its guests, from the hostility of others who may disagree with their views. Consistent with such a change in policy, we believe you should withdraw the pending request for reimbursement by the College Republicans insofar as it is based on such security measures.  Our views on this matter do not reflect any agreement with the views of Mr. Gibson, or with the decision to invite him to speak on campus. Below, we explain why we believe that this request is justified by law and the interests of the university.

(1) Supreme Court Jurisprudence

Professor Eric Schnapper (credit: Oyez)

The First Amendment standards applicable to this situation were established by the Supreme Court decision in Forsyth County, Georgia v. Nationalist Movement. [2]  Forsyth County, a primarily rural county near Atlanta, had a particularly troubling racial history.  In 1912 the entire African-American population was driven from the county; 75 years later the population remained 99% white.   In January 1987, Hosea Williams, an Atlanta city councilman and longtime civil rights leader, attempted to march with 90 civil rights demonstrators in the county seat.  They were met by some 400 counterdemonstrators, including members of the Ku Klux Klan, who shouted racial slogans and forced the parade to a premature halt by throwing rocks and beer bottles. Williams organized a return march the next weekend.  It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, and an Assistant United States Attorney General in a parade and rally.  The 1,000 counter-demonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen.

The actions taken to protect the demonstrators cost over $670,000.[3]  Three days after the second demonstration, “[a]s a direct result” of the demonstrations, the Forsyth County Board of Commissioners adopted an ordinance providing that individuals participating in demonstrations would be required to pay for the cost of protecting them from others.  The amount of the fee was to be based on “the expense incident to . . . the maintenance of public order in the matter . . . .”[4]   The amount of the fee was later capped at $1,000.

Several years later, The Nationalist Movement proposed to hold a demonstration in Forsyth County in opposition to the federal holiday commemorating the birthday of Dr. Martin Luther King, Jr.  The county described The Nationalist Movement as “a white supremacist group.”[5]   The county imposed a fee of $100.  The Movement did not pay the fee or hold the demonstration; instead, it filed suit challenging the constitutionality of the county ordinance.

When the litigation reached the Supreme Court, briefs in support of The Nationalist Movement were filed by a number of organizations which clearly disagreed with the racial views of the Movement.  They argued that it is unconstitutional to require speakers or groups to pay for the cost of protecting them from individuals who object to their views.  The ACLU, in a brief joined by People for the American Way, pointed out that

[t]he most predictable result of a rule assessing the speaker for the cost of controlling hostile onlookers would be to silence the speaker.  Furthermore, the likelihood of that result will only encourage counterdemonstrators to escalate their threats of violence.  The greater their threatened unlawfulness, the greater the cost to the speaker, and the less likely it is that the speech will ever take place.[6]

Joey Gibson (credit: The Columbian)

The AFL-CIO, in a separate brief, urged that “[a] government-imposed fee . . . that increases as the content of the proposed speech becomes more controversial . . . contravenes the basic principle underlying the proscriptions on content-based economic burdens on speech . . . .”[7]

The Supreme Court held that the Forsyth County ordinance was unconstitutional because the amount of a fee charged for a demonstration or parade permit was greater if the views of those participating were so unpopular that they required police protection.  “[T]he Court’s . . . First Amendment jurisprudence . . . do[es] not . . . permit”  “charging a premium in the case of a controversial political message delivered before a hostile audience.”[8]  “[T]he costs . . . are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation.”[9]  “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”[10]

The Supreme Court decision in Forsyth County rested in part on a long line of Supreme Court decisions holding that the First Amendment rights of civil rights demonstrators may not be curtailed on the ground that the expression of those views angered white onlookers.  “It is only necessary to look back a score of years in our history to find a situation in which speakers who advocated racial equality were denied their freedom of expression because of the angry response of a segment of the community to their message.”[11]  Those earlier Supreme Court opinions establish that the constitutional right of free speech cannot be vetoed by the use or threat of violence by an angry heckler. Three examples make this point.

— First, in Edwards v. South Carolina[12], the Supreme Court overturned the breach of the peace convictions of James Edwards and a group of high school and college students who had marched peacefully to the state capitol in Columbia to protest racial discrimination in the state. The demonstrators carried signs proclaiming “Down with segregation” and sang “We Shall Overcome.”  Police officials objected that the demonstration risked provoking hostile whites[13], and arrested the demonstrators when they refused to disperse.  The Court held that the First Amendment did not permit convicting the demonstrators on the ground that “the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection”[14]The state law was unconstitutional as applied because it permitted a conviction merely because speech “stirred people to anger . . . or brought about a condition of unrest.”[15]

— In Cox v. Louisiana[16], the Court overturned the breach of the peace conviction of the Reverend B. Elton Cox, a Field Secretary of the Congress of Racial Equality, who led a march of students from Southern University to the state capitol in Baton Rouge, Louisiana.  The protesters were objecting to the arrest of twenty-three fellow students who had been jailed for picketing stores in Baton Rouge that maintained segregated lunch counters.  At the end of the demonstration, Cox urged the demonstrators to seek service at segregated counters.  “The Sheriff . . . deem[ed] . . . Cox’s appeal to the students to sit in at the lunch counters to be ‘inflammatory’ . . . .”[17]  Police ordered the students to disperse and fired tear gas when the students did not leave at once; Cox was subsequently arrested.  The state sought to justify prosecuting Cox on the ground that his actions created a risk that he and the other demonstrators would be attacked by angry white onlookers.[18]  The Court held that Louisiana could not punish Cox “merely for peacefully expressing unpopular views” on the ground that his statement might “occasion” “a breach of the peace.”[19]

— Finally, in Gregory v. City of Chicago, a group of demonstrators led by Dick Gregory “marched in a peaceful and orderly process from city hall to the mayor’s residence to press their claims for desegregation of the public schools.”[20]  Gregory told marchers, “If anyone hits you or anything, try to remember what they look like, but above all means, do not hit them back.”[21]Gregory other marchers were convicted of disorderly conduct because they had provoked an angry response by white onlookers.[22]  The Supreme Court reversed, explaining that peaceful demonstrators could not be punished merely because hostile onlookers became violent.[23]  The constitutional problem, one Justice explained, was that it was “entirely possible that the jury convicted the [defendants]on the ground that Gregory and the others who demonstrated with him . . . simply because the form of their protest displeased some of the onlookers.”[24]

                       Video by David Neiwert (credit: Southern Poverty Law Center)

Edwards, Cox, and Gregory are, in turn, part of a larger and long line of Supreme Court decisions holding that constitutional rights cannot be curtailed because of the danger of violent opposition.  In the fall of 1957, a federal court ordered the admission of nine African-American students to Central High School in Little Rock.  When the students arrived on September 23, 1957, a mob of angry whites besieged the school; local police officers, unable (or perhaps unwilling) to control the crowd, decided to remove the African-American students from the school. Two days later, the President of the United States dispatched federal troops to Little Rock High School to protect the African-American students; the troops were later replaced by federalized National Guardsmen, who remained in the school protecting those students throughout the remainder of the school year. In early 1958, school officials asked the federal court to suspend desegregation of Little Rock High School because of that vehement public opposition.[25] Read More

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Deputy A.G. Rod Rosenstein to be interviewed at Newesum on May 1st, Law Day — Public invited

Newseum, Wash., D.C.

A Law Day Conversation With Rod Rosenstein, Deputy Attorney General of the United States
Tuesday, May 1, 2018 / 2:00 p.m.
Newseum, Walter and Leonore Annenberg Theater, Washington, D.C.

To commemorate Law Day, the Newseum Institute presents a special program featuring Rod Rosenstein, deputy attorney general of the United States, in a wide-ranging discussion on the rule of law, the First Amendment and the mission of the Department of Justice.

The conversation will be moderated by Ronald Collins, a constitutional law and First Amendment expert and the Harold S. Shefelman Scholar at the University of Washington School of Law.

Deputy AG Rod Rosenstein

Rosenstein was sworn in as the 37th Deputy Attorney General of the United States on April 26, 2017, and has served in the Department of Justice for nearly three decades under several presidents and attorneys general.

Law Day is held on May 1 every year to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession.

Register here (no admission charge) 4-18-18: SOLD OUT 

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FAN 186 (First Amendment News) Major new book on Anthony Comstock & his censorial crusades

“Lust on Trial” is the story of the most extraordinary efforts in American history to make us a moral Christian nation . . . . [It is the story of a man] who truly believed that lust would lead mankind to the eternal fires of hell. [Thus, it] was his mission throughout his life to destroy any materials that would arouse lust . . . . And he pursued that mission relentlessly throughout his career. — Amy Werbel 

Anthony Comstock

Anthony Comstock (1844-1915): By any and all measures, he was the greatest enemy of free speech in America; and his legacy of suppression endured long after he died. Intoxicated with his own sense of moral righteousness and obsessed with what he deemed to be immoral expression, Comstock (a devoted evangelical) went after his targets with ruthless passion. No book, dime novel, newspaper, magazine, pamphlet, manual, photograph, printing plate or even postcard was safe from his censorial clutches. This founder of the New York Society for the Suppression of Vice roamed his world searching for any signs of immorality.  Later, he succeeded in urging Congress to pass the Comstock Law. Under it, it was illegal to mail any “obscene, lewd, or lascivious” materials. Likewise, it was unlawful to print or distribute anything counseling or even discussing abortion, contraception, or the prevention of venereal disease. Armed with such powers, this special agent of the United States Postal Service prosecuted and persecuted the impure with a manic vengeance. To buttress his influence, he also wrote books — e.g. Frauds Exposed (1872) and Traps for the Young (1883)

“For more than four decades,” wrote Robert Corn-Revere, “Comstock terrorized writers, publishers, and artists—driving some to suicide . . . . George Bernard Shaw popularized the term ‘Comstockery’ to mock the unique blend of militant sanctimony and fascination with the lurid that marks American prudishness.”

David Brudnoy, Comstock’s Nemesis: Theodore Schroeder, Reason.com (Oct. 1975)

Professor Amy Werbel

The last major work on Comstock and his suppressive ways was done in 1927 by Heywood Broun and Margaret Leech; it was titled Anthony Comstock: Roundsman of The Lord

Now comes a major new book on Comstock and his censorial calling, a book a decade in the making and rich with historical details based on original sources.  The book is titled Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press). Its author is Amy Werbel who is an Associate Professor of the History of Art at the Fashion Institute of Technology.

AbstractLust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock offers a new and unadulterated view of the risqué behaviors and complex sexualities of Americans in the Gilded Age and Progressive Eras, and a fresh perspective on legal efforts to expand civil liberties before World War I. Extensive new research conducted in dozens of public and private archives makes it possible for the first time to fully tell the story of Anthony Comstock’s censorship of American visual culture, and to publish examples of the “obscenities” he suppressed. Lust on Trial illuminates the complex relationship between censorship and cultural change, and offers thought-provoking insight into our nation’s long struggle to live up to the promise of the First Amendment.

Related

YouTube video of Professor Werbel discussing her book

→ Introduction to Lust on Trial here

Publishers Weekly (review: “fascinating, page-turning study”)

→ Amy Werbel, For Our Free Speech, We Have Censors to Thank, Chronicle of Higher Education, Sept. 14, 2015

Advance Praise

“Amy Werbel’s Lust on Trial offers a brilliant analysis of the life and times of Anthony Comstock, the fiercely religious moralist who led the national campaign to rid the United States of sexual expression from 1873 until his death in 1915. As Werbel powerfully demonstrates, Comstock’s efforts to persuade the nation that such expression “corrupts the mind . . . and damns the soul” perilously threatened our nation’s separation of church and state. This lesson in how religious fanaticism can destroy our freedom is now more important than ever.” – Geoffrey R. Stone

 “In this vibrant history, Amy Werbel explores the legal and cultural battles surrounding the censorship of “obscene” materials in late nineteenth and early twentieth century New York. Lust on Trial not only mines the history of censorship and repression in a modernizing America, but also sheds light on its legacy for current debates.” – Nadine Strossen

Discounted priced for FAN readers

 If you add the book to your cart, you can then use the code cup30 for a significant discount, go here

(look for discount code box — $10.50 off the $35.00 list price — much cheaper than Amazon!)

Association of University Presses issues statement on censorship

The Association of University Presses (AUPresses) yesterday issued a statement of guiding principles addressing attempted censorship in a global network of scholarly communications. The Board of Directors of AUPresses approved the statement to affirm “the fundamental importance of the integrity of the scholarship entrusted to us and the essential role of university presses in supporting the values which safeguard that integrity.”

University presses around the world serve scholars — as authors and readers — on a global scale, with local impact. The Association understands that in this more closely networked world, publishers may receive more frequent requests to censor or otherwise alter the content they have published.

“All attempts to censor the scholarly record must be met with the deepest concern,” reads “Facing Censorship: A Statement of Guiding Principles.” The Association recognizes that individual publishers may be faced with difficult situations, wherein the theoretically complementary values of access and integrity, intellectual freedom and cultural sensitivity, equal treatment of customers and the safety of staff, may suddenly be in tension. A publisher should be able to turn to the support of its home institution and the community of university presses when facing such challenges.”

Nicole Mitchell (credit: Hayley Young)

“We have recently seen cases where scholarly publishers have been forced to grapple with these issues in real time. Good faith arguments attempt to balance questions of access and integrity with sometimes very different results, and we all recognize the seriousness of any ultimate decision,” said Peter Berkery, AUPresses Executive Director.

Nicole Mitchell, Association President, and Director, University of Washington Press, added, “The board felt that it was important for the Association to make a clear affirmation of our community’s values and to provide some guidance for any of our member presses who may be called upon to change the shape of the scholarly record.”

Headline — “First Amendment: Skim Milk Labeling Leads Maryland Dairy to Sue FDA” Read More

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FAN 185 (First Amendment News) Nearly $2 million awarded in anti-SLAPP case involving Sheldon Adelson

The case is Adelson v. Harris (S.D., N.Y., 12 Civ. 6052 (JPO) (March 29, 2018). The matter involved a claim by “billionaire casino magnate Sheldon G. Adelson against the National Jewish Democratic Council for a 2012 online petition that stated Adelson personally approved of prostitution in his Asian casinos.” In the latest round of this case, and after trips to the Second Circuit and the Nevada Supreme Court, Mr. Adelson lost yet again.

Here are a few excerpts from Judge J. Paul Oetken’s recent order in Adelson v. Harris:

Sheldon G. Adelson

“This is a defamation action filed by Sheldon Adelson arising out of the 2012 presidential campaign. Adelson brought suit against David A. Harris, Marc R. Stanley, and the National Jewish Democratic Council (“NJDC”) (together, “Defendants”) for libel based on a publication on NJDC’s website in July 2012. This Court dismissed Adelson’s complaint in 2013, and that dismissal was affirmed by the Second Circuit following a certification of questions to the Nevada Supreme Court. Presently before the Court is Defendants’ motion for attorney’s fees and costs.”

Lee Levine (one of the lawyers for the Defendants)

“In 2013, this Court dismissed Adelson’s complaint under both Rule 12(b)(6) of the Federal Rules of Civil Procedure and Nevada’s anti-strategic litigation against public participation (“Anti-SLAPP”) statute, Nev. Rev. Stat. § 41.635–670. The Court also concluded that Defendants were entitled to reasonable attorney’s fees and costs under Nevada’s Anti-SLAPP statute, Nev. Rev. Stat. § 41.670(1). See Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013). . . .”

“The Nevada Supreme Court answered [the common law] questions [posed to it] in a manner consistent with this Court’s earlier decision. See Adelson v. Harris, 402 P.3d 665 (Nev. 2017). The Second Circuit then affirmed this Court’s decision dismissing the complaint. See Adelson v. Harris, 876 F.3d 413 (2d Cir. 2017). . . .”

“The parties have briefed Defendants’ fee request in two rounds of filings: first for the district court phase of litigation (i.e., fees and costs incurred from the beginning of the case through September 30, 2013); and second for the appellate phase (i.e., fees and costs incurred from October 1, 2013, through December 31, 2017). Each is addressed in turn. . . .”

“Defendants’ application for attorney’s fees and costs pursuant to Nev. Rev. Stat. § 41.670 is GRANTED. Plaintiff Adelson is hereby ordered by pay to Defendants the amount of $1,909,476.50 in fees and $55,716.64 in costs, for a total of $1,965,193.14.”

Counsel for Defendants

Messrs. Levine and Berlin led a team of lawyers from Ballard Spahr (formerly  Levine Sullivan Koch & Schulz). The other defense lawyers were:

Former American Icon contestant loses false-light claim

This from David L. Hudson, Jr., over at The First Amendment Encyclopedia:

Corey Clark

“Former American Idol contestant Corey Clark lost his false light claim against E! Entertainment Television, as a federal district court judge ruled he failed to show that the defendant acted with actual malice. . . .”

“Clark appeared on Season Two of American Idol and did well, making the top 10.  However, show producers disqualified him from the show after there was a report about Clark’s arrest in Kansas that he allegedly failed to disclose.”

“Clark later contended that he was romantically involved with Paula Abdul, music superstar and one of the three judges on American Idol.  Clark’s claim received widespread publicity, including a segment on ABC’s Primetime.” 

E! True Hollywood Story, a documentary series about music stars, did a story on Abdul and referenced the Clark controversy.  The documentary did not interview Clark.  However, the story did quote a USA TODAY reporter, stating: ‘At the end of the day maybe only the two of them [Clark and Abdul] know what really happened.'”

“The documentary did explain that Clark had been arrested but was cleared of the charges.” 

“Clark sued both E! Entertainment Television and Fox Broadcasting Company in federal court for two claims: (1) defamation and (2) false light invasion of privacy.   In 2014, a federal district court dismissed both claims against Fox and dismissed the defamation claim against E! Entertainment Television.   The only claim remaining was the false light invasion of privacy claim against E! Entertainment Television. . . .”

“On March 26, 2018, U.S. District Court Judge William L. Campbell, Jr. granted summary judgment to E! Entertainment Television and ruled against Clark on his false light claim in Clark v. E! Entm’t TV, LLC.  The court noted that Clark had the burden to show by clear and convincing evidence that E! Entertainment Television acted with actual malice. . . .”

Virginia’s restrictive ‘happy hour’ advertising rules challenged Read More

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FAN 184 (First Amendment News) Institute for Free Speech releases free speech index on state campaign finance laws

The Institute for Free Speech has just released a 102-page report titled Free Speech Index – Grading the 50 States on Political Giving Freedom.  The foreword to the report was written by Bradley A. Smith (Chairman and Founder) and  David Keating (President). Below is a partial description of the report and an executive summary of it.

Bradley Smith & David Keating

Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.

To assess the impact of such speech regulation, we created the Free Speech Index. In the future, we hope to publish similar ratings of state laws on other types of restrictions on political speech. This first installment measures the freedom of individuals, political parties, and groups to contribute to causes and candidates they support.

Executive Summary

This installment of the Free Speech Index rates each state on how well it supports free speech rights in a core area of political participation: the rights of individuals and groups to contribute to and support the candidates and causes of their choice.

To assess each state in this area, we ranked the states on nineteen variables grouped into five categories:

  • Individual Freedom (the ability of individuals to give to candidates, parties, and political committees, known informally as PACs);
  • Party Freedom (the ability of political parties to give to or support their candidates);
  • Group Freedom (the ability of PACs to give to candidates and parties);
  • Inflation-Indexing Provisions; and
  • Union and Corporate Freedom (the ability of unions and corporations to donate to candidate campaigns).

States earn points in each category, which are then weighted and combined to produce a total score from 100 to 0 and a letter grade, from A+ to F.

Because the states and legislative districts vary widely in population, contribution limits were compared based on population. For example, a $1,000 per election contribution limit in a New Hampshire State House district with a roughly 2,500 voting-eligible population is much less restrictive than a $1,000 per election South Carolina limit where the State House district has over ten times the number of voters. We also had to account for the wide variety of ways in which states write campaign limit laws. For a full explanation of the five categories and how the scores are computed, see the Methodology section.

Eleven states received an A+ or A grade. The top 11 rated states overall were: Alabama, Nebraska, Oregon, Utah, and Virginia (each tied for #1), Mississippi (#6), Iowa (#7), Indiana (#8), and North Dakota, Pennsylvania, and Texas (each tied for #9). These 11 states are diverse in size, population, geography, and politics. They include large states (Texas), less populated states (North Dakota), eastern states (Pennsylvania), western states (Utah), blue states (Oregon), and red states (Alabama).

The best overall grade, A+, went to Alabama, Nebraska, Oregon, Utah, and Virginia. These five states permit individuals, political parties, and PACs to contribute unlimited sums to the candidates, parties, and causes of their choice. These states also allow unlimited donations from unions and businesses to candidate campaigns. Because none of these states impose limits, all received the same top grade.

The five lowest scores belong to Kentucky, West Virginia, Alaska, Colorado, and Maryland. In the end, eleven states receive an F, a sad commentary on the widespread existence of stringent restrictions on political giving across the country.

States in the middle of the rankings all have their own specific shortcomings. For example, Illinois and Nevada rank 29th and 30th in the Index, respectively. Both receive a C- grade. Yet, their limits are polar opposites. Nevada allows individuals to give unlimited amounts to parties and political committees, but imposes low limits on contributions from parties to candidates and fails to adjust these limits for inflation. Illinois allows parties to provide unlimited support to their candidates, and its limits are adjusted for inflation, but individuals can only give small amounts to parties and PACs.

First Amendment gerrymandering case to be argued in SCOTUS tomorrow 

Case:  Benisek v. Lamone 

Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.

Counsel

  • Michael Kimberly, Counsel of Record for Appellants
  • Steven M. Sullivan, Maryland Solicitor General, Counsel of Record for Appellees

Select Amicus Briefs 

Commentaries 

The Costs of Denying Free Speech on Colleges Campuses — Attorneys’ Fees Awards  Read More

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FAN 183 (First Amendment News) Pushback: Seidman’s “Can Free Speech Be Progressive?” article draws critical response

Declining support for unfettered debate among politicians, academics, and the public doesn’t bode well for the future of free speech.  — J.D. Tuccille, March 19, 2018

There’s dissent in the air — from the Left, the Right, and from Libertarian quarters, too. Everybody is getting ever more worked up about free speech in America.

J.D. Tuccille

Donald Trump wants to revive old defamation laws; some on the Left want to amend the First Amendment; some on the Right want the government to regulate violent movies and video games; many college administrators appear determined to abridge the First Amendment; college students gather en masse to silence speech that offends them; First Amendment scholars ask What’s Wrong with the First Amendment?; and Libertarians, well, they can never have enough free-speech freedom.

Make no mistake: the future of the First Amendment hangs in the balance as never before.  This is no “the sky is falling” claim. Rather, it is an observation on our times. No, not like the late 18th century, or WWI, or the McCarthy Era. Not at all. But we are in a state of transition. Take heed: the goal lines are shifting.

Indicative of that shift is a headline over at Reason.com: “Trump’s Anti-Speech Agenda Gets a Boost From Lefty Lawyers and Academics.” Among other things, it is offered up as a sort of reply to something I posted last week: Professor Louis Seidman’s forthcoming Columbia Law Review article titled Can Free Speech Be Progressive?  J.D. Tuccille authored the article. He is a former managing editor of Reason.com and current contributing editor. Here are some excerpts from his article:

  • “We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it’s used by the “right” people for their favored goals, and the country’s leading civil liberties organization is suffering an internal revolt by staffers who oppose “rigid” support for free speech protections.”
  • “[I]f you’re an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you’re Georgetown Law’s Louis Michael Seidman, you suggest that the president might be on to something.”
  • “In 2016, [Professor Seidman] wrote for the Nation, ‘Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky.’ In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.”
  • “And Seidman isn’t alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America’s Civil Liberties Compromise. Weinrib complained in a Los Angeles Times op-ed last summer that “free speech has served to secure the political influence of wealthy donors,” while “labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses.”
  • “Last fall, about 200 of the [ACLU’s] staff members signed a letter objecting to the groups’ ‘rigid stance’ on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as ‘a repudiation of free-speech principles.'”
  • “[I]ntolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas.”

There is more, much more, but you’ll need to read the full article to discover what you missed.

Court Reporters’ assessments of arguments in California abortion-speech law case

Yesterday the Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra.

Issue: 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 F Fourteenth Amendment.

Facts: This from Amy Howe over at SCOTUSblog: “The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.”

Lawyers 

  • Michael P. Farris argued on behalf of the Petitioners.
  • Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, argued on behalf of the United States, as amicus curiae, in support of neither party, and
  • Joshua A. Klein, Deputy Solicitor General, California, argued on behalf of the Respondents

Commentators — Consensus: Justices skeptical of constitutionality of California law 

  • Adam Liptak (NYT): “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. . . . Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”
  • David Savage (L.A. Times): “The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers — including those that are faith-based — to notify women that the state offers subsidies for abortion. . . . [M]ost of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law. . . . Tuesday’s case marked the third time in recent months that the justices weighed a conservative group’s claim that a liberal state law amounts to unconstitutional ‘compelled speech.'”
  • Nina Totenberg (NPR): “Supreme Court justices on both sides of the ideological spectrum expressed skepticism about California’s ‘truth-in-advertising’ law requiring anti-abortion clinics to more fully disclose what they are.”
  • Robert Barnes (Washington Post): “Supreme Court justices on Tuesday indicated that a California law requiring antiabortion pregnancy centers in California to notify women that the state provides free or low-cost health care, contraception services and abortion, could violate free speech rights. . . . [Justice Kennedy’s questions] were almost uniformly hostile to the law, and he was even short with other justices who seemed to defend it.”

Related

EXCERPTS from aruments in California abortion-speech law case Read More

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The Hidden Hand

The great mystery of the Marshall Court is how the Justices worked together. Because most of those opinions were unanimous and there are few internal documents available on the Court’s deliberations, scholars often fall back on the thought that the author of any given opinion (usually Chief Justice Marshall or Justice Story) supplied all of the reasoning. In some sense we know that cannot be true, but how to prove that?

In writing about Bushrod Washington, I hope to answer that question. Thus far, I have two clues. One is the Justice’s journal that is in the Chicago History Museum. Here you can find draft opinions for a few Supreme Court cases during the 1820s, and I can use those notes as a basis for comparison with the final product.

The second clue relates to an opinion written by Justice Story (Terrett v. Taylor). Taylor is a very interesting case (I’ll say more about it in another post) that addressed the legality of a Virginia statute that sought to strip the state’s Episcopal Church of its property. The Court’s opinion finding the statute unconstitutional can be compared to an opinion that Washington wrote as a private attorney about the issue in the 1790s. Story’s opinion and Washington’s earlier analysis are quite similar in many passages. I’m not sure yet whether this is a coincidence or indicates that Washington (who knew a lot about the matter) contributed significantly to Story’s draft.

Anyway, it’s another piece of the puzzle. The search for more continues.

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FAN 182 (First Amendment News) Can free speech be progressive? Professor Seidman thinks not

Civil liberties once were radical.  Laura Weinrib (2016

The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. Louis Michael Seidman

Professor Louis Michael Seidman

Can Free Speech Be Progressive? That’s both the question raised and the title of a forthcoming Columbia Law Review article by Professor Louis Seidman. Without mincing words, Seidman responds: “The answer is no. At least the answer is no if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. . . .” Of course, there’s more to the story, the nuanced part.  That said, here are a few excerpts:

Sword for the Powerful: “With the receding of Warren Court liberalism, free speech law took a sharp right turn. Instead of providing a shield for the powerless, the first amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the LBGTQ community, labor unions, animal rights advocates, environmentalists, targets of hate speech, and abortion providers. While striking down laws that protected all of these groups, the Court upheld a statute that cut off all funding to colleges and universities that refused to allow the military to recruit on campus and a statute that criminalized purely political speech that constituted neither incitement nor a clear and present danger when the speech “materially support[ed]” a group that the State Department labelled as a “foreign terrorist organization.”

Mere Instrumental Utility for Progressives: The free speech victories of the past “do not make free speech progressive. The working class might be slightly better off because of the few crumbs cast their way by the Trump tax law. That does not make the law redistributive. Similarly, the fact that free speech protects the left from the most extreme threats to it does not make the speech right progressive. The question that I address here is not whether the speech right has instrumental utility in isolated cases or whether it is necessary to minimize extreme downside risks. Instead, I address the claim that the amendment has significant upside potential. Can progressives weaponized free speech by tinkering with constitutional doctrine? Can they convert the first amendment from a sporadically effective shield against annihilation to a powerful sword that would actually promote progressive goals? To answer that question, we need to think hard not just about isolated cases, but about the theory behind the right and the right’s basic structure.”

Not Much Historical Help: “At its core, free speech law entrenches a social view at war with key progressive objectives. For that reason, it is not surprising that throughout American history, the speech right has, at best, provided uncertain protection for the left. The modern, anti-progressive first amendment amounts to the delayed presentation of traits built into the genetic material of the speech right.”

Four Reasons Why Free Speech Cannot be Progressive

  1. The Link Between Free Speech and Property Entitlements: “There is an intrinsic relationship between the right to speak and the ownership of places and things. Speech must occur somewhere and, under modern conditions, must use some things for purposes of amplification. In any capitalist economy, most of these places and things are privately owned, and in our capitalist economy, they are distributed in dramatically inegalitarian fashion.”
  2. “Granting speech opportunities to some often denies speech opportunities to others. For that reason, the speech right harms speech, as well as nonspeech, interests.”
  3. Free Speech & Government Neutrality: “American speech law is dominated by a concern about equality and neutrality. Free speech law’s core commitment is to the proposition that the government may never suppress speech simply because of disagreement with the message that it expresses.”
  4. Free Speech & Free Thought: “The assertion of a constitutional right to freedom of speech is dictatorial. . . . [C]onstitutionalizing the right to freedom of speech leads to an anti- liberal mindset. An assertion that the Constitution requires a certain state of affairs is a way of avoiding the necessity for producing actual reasons for why that state of affairs is desirable and just. If the Constitution requires something, then that is the end of the argument, at least in American constitutional culture. Short of a constitutional amendment, a constitutional requirement that a thing must be done just means that it must be done. Once the requirement is established, there is nothing left to talk about.”

A Different Take

David Cole of the ACLU

“[W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak. By definition, the powerful are able to achieve their interests through the political process. As a result, they are less likely to need constitutional protections. For the weak, however, constitutional protections may be all they have. While “civil liberties” in their liberal form are universal, they are designed to protect those whose interests are not served by the political process. And that gives them radical potential, even if they are available to all. . . .”

“The classical liberal conceptions of free speech and free press may not be enough to produce a fully informed electorate or to redress the social and economic ills that skew public debate. But as a constitutional matter, they remain the single best defense against an overweening state. More than ever, those are the rights and liberties that will now need our support.”

Headline: “ACLU files First Amendment lawsuit over mural featuring controversial Trump quote”

Read More

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FAN 181 (First Amendment News) Tomorrow: Argument in S. Dist. N.Y. Ct. — Lawsuit Challenging President’s Blocking of Critics on Twitter

President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excluded—“blocked”—Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it.

— Complaint: Knight First Amendment Institute v. Trump

This from the Knight First Amendment Institute: Tomorrow, March 8 at 11 a.m., “the Knight First Amendment Institute at Columbia University and the U.S. Department of Justice will present oral argument in the Knight Institute’s landmark First Amendment challenge to President Trump’s blocking of critics on Twitter. The argument, which is open to the public, will be held before the Hon. Naomi Reice Buchwald at the Daniel Patrick Moynihan U.S. Courthouse in New York City.”

“Last July, the Knight Institute filed suit in the Southern District of New York contending that the @realDonaldTrump account is a “public forum” under the First Amendment and that the president and his subordinates are violating the Constitution by blocking people from the account simply because they have criticized the president or his policies. The suit also contends that the Trump administration is violating the plaintiffs’ First Amendment right to petition the government for redress of grievances.”

Katie Fallow

“The Institute and the Trump administration filed motions for summary judgment in the lawsuit last fall, and this Thursday, Judge Buchwald will hear argument from both parties.”

Counsel for Knight Institute: Jameel Jaffer, the Knight Institute’s executive director, and Katie Fallow, a senior staff attorney at the Institute, will argue before the court, and several plaintiffs in the lawsuit will be in attendance.

For more information about the lawsuit, including the latest filings, go here.

Related: This from First Amendment Watch: President Trump, Other Elected Officials Block ‘Disliked’ Twitter Followers, March 3, 2018

Headline: “Haling The First Amendment: NYC Taxi Authority’s Ad Ban Struck Down”

Over at Forbes, Glenn Lammi writes: Taxicab, livery, black car, and limousine companies in the Big Apple may own the vehicles their employees drive, but they know full well who really controls them: the New York City Taxi and Limousine Commission (TLC). Passenger transportation is one of the city’s most heavily regulated businesses, but as a federal district court judge recently reminded TLC, those small business still have constitutional rights.”

“. . . In 2015, media-distribution company Vugo sought to partner with Uber, Lift, and other rideshare company drivers in New York City. Those drivers would download Vugo software onto a tablet device that would be displayed to riders. Vugo would pay each driver 60% of the ad revenue generated from their tablets. Because ridesharing falls into the “other” category of TLC-regulated for-hire vehicles, and TLC made it clear that it would not approve any rideshare drivers’ requests for interior advertising, Vugo could not proceed with its expansion plans. In response, Vugo filed a First Amendment challenge against TLC in U.S. District Court for the Southern District of New York.”

“Southern District Judge Ronnie Abrams held on February 22, 2018 (Vugo v. City of New York) that TLC’s ban abridged Vugo’s commercial-speech rights. . . .”

New First Amendment Group — Speech First  Read More

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FAN 180 (First Amendment News) Cert. Petition — Does Renton v. Playtime Theatres’ Secondary Effects standard of review survive Reed v. Town of Gilbert?

J. Michael Murray

His name is J. Michael Murray. He is a criminal defense lawyer out of Ohio. He is also a First Amendment lawyer and past president of the First Amendment Lawyers Association. Mr. Murray Murray is distinguished in The Best Lawyers in America in two separate categories: First Amendment Law and White Collar Criminal Defense, both of which include cases that have taken him to courts throughout the nation.

Among other First Amendment cases, he successfully argued Free Speech Coalition, Inc. v. Attorney General of the U.S. (3rd Cir. 2016) (majority opinion per Smith, J.: “We deem it significant that the Supreme Court has never actually applied the secondary effects doctrine outside the realm of brick-and-mortar purveyors of adult sexually explicit content. We decline to do so now, because any application of the secondary effects doctrine beyond what the Supreme Court has explicitly endorsed would bring this case into direct conflict with Reed’s pronouncement that we cannot look behind a facially content-based law to a benign motive in order to shield the law from the rigors of strict scrutiny.”)

Now Mr. Murray has filed a cert. petition in the case titled Flanigan’s Enterprise, Inc. v. City of Sandy Springs (11th Cir. per curium opinion here), a case that raises some important First Amendment questions. The trhee issues presented in the case are the following:

  1. The secondary effects doctrine of Renton v. Playtime Theatres, Inc. (1986), provides that content-based regulations avowedly aimed at adverse secondary effects associated with businesses offering sexually oriented expression are to be reviewed under intermediate, rather than strict, scrutiny. Does that doctrine survive Reed v. Town of Gilbert,  (2015), which holds that facially content-based laws are subject to strict scrutiny, regardless of their content-neutral justifications?
  2. City of Los Angeles v. Alameda Books (2002), is a plurality decision addressing the evidentiary burdens under the secondary effects doctrine. If the secondary effects doctrine survives, does Justice Kennedy’s concurrence constitute the holding of that case as representing the narrowest ground supporting the judgment, as the Sixth, Seventh, Eighth, Ninth Circuits, and prior panels of the Eleventh Circuit have held, or is Justice Kennedy’s concurrence not binding precedent, as the court below concluded?
  3. Marks v. United States (1977), held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’” Under Marks:
  • may a concurring opinion qualify as the holding even if it does not share common reasoning with the plurality opinion, as the Eleventh Circuit has held? United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017) cert. granted, No. 17-155, Dec. 8, 2017, or
  • must it be “in harmony” with the plurality opinion to qualify as the holding, as the court below held? or
  • must it be a “logical subset” of the other broader opinions in the case to qualify as the holding, as the Ninth and D.C. Circuits, have held? United States v. Davis, 825 F.3d 1014, 1021 (9th Cir. 2016) (en banc); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

(ht: David Keating)

Headline: ‘Free Speech’ Suit Aims to End Twitter’s Political Censorship

This from Ian Mason at Breibart News (Feb. 23, 2018)

Marc Randazza (lead counsel for Plaintiffs)

“A group of free-speech lawyers [led by Marc J. Randazza] filed the most serious legal challenge yet to Twitter’s censorship policies Tuesday in San Francisco County Superior Court, seeking a ruling preventing Twitter from banning users purely on the basis of their views and political associations.”

“The 29-page complaint contends that, under a California legal doctrine that recognizes some private facilities as “public forums,” Twitter may not discriminate against speech on their platform based purely on viewpoint. If successful, it would be the first extension of that doctrine to internet social media platforms and could transform the way free speech is treated online. The suit became all the more relevant Wednesday as Twitter stood accused of locking out thousands of conservatives under the guise of cracking down on ‘Russian bots.'”

The genesis of the suit is Twitter’s November 2017 announcement that they would start banning and sanctioning users based on their offline behavior and associations. On December 18, 2017, Twitter, five years after their top British executive described the company as “the free speech wing of the free speech party,” made good on this threat, ‘purging’ hundreds of mostly right-wing users. Twitter’s new policy refers to association with “violent extremist groups,” and a company blog post claimed, ‘If an account’s profile information includes a violent threat or multiple slurs, epithets, racist or sexist tropes, incites fear, or reduces someone to less than human, it will be permanently suspended.’ . . .”

Former Dow Jones GC to Oversee First Amendment Clinic

From Susan DeSantis writing in the New York Law Journal: “With free speech debates raging on college campuses and journalists under attack, Cornell Law School is launching a First Amendment clinic under the leadership of former Dow Jones General Counsel Mark Jackson.”

Mark Jackson (credit: Black Tie Magazine)

“Jackson, a First Amendment expert and a 1984 graduate of the law school,  is overseeing the clinic at the request of Dean Eduardo Peñalver.  Jackson hopes the clinic — one of a growing number with such an emphasis — will have a national impact although it will primarily represent clients in upstate New York, western Pennsylvania and eastern Ohio.”

“‘We are really excited to have the Cornell program coming online in the fall.’ said Bruce Brown, a former partner in the D.C. offices of Baker & Hostetler and the executive director of the Reporters Committee for Freedom of the Press. ‘It just feels in so many different ways like our moment.'”

“The Cornell clinic and clinics launching in the fall at Vanderbilt, Duke and Arizona State law schools are needed to counter the Trump administration’s attacks on the press, meet American Bar Association requirements for experiential learning and help state and local journalists who don’t have access to lawyers, Brown said.”

“‘That is a lot of new capacity coming online and that is extremely encouraging to us who’ve been working in this area for the last couple of years,” Brown said.”

“Under the auspices of the Reporters Committee, the Cornell clinic, The Civil Liberties & Transparency Clinic at the University at Buffalo School of Law and other such clinics and nonprofits are forming a nationwide coalition to serve as a clearinghouse for journalists. The coalition is so new, in fact, that it doesn’t yet have a name. . . .”

Like father, like son

“Jackson has his father to thank [for his interest in a free press]. Paul Jackson was a journalist who founded the local newspaper, The Bellmore Chronicle and is best known for his work on The Long Island Independent. He often told his four kids—Mark was second—about his battles for the public’s right to know about school board and sewer committee meetings. Jackson vividly remembers hearing the oft-told story of how city officials had tried to close a city council meeting his father was covering. His father stood up and objected that closing the meeting was a violation of state law and the First Amendment, refusing to leave until he was escorted out. His four children were proud of their dad, who went on to work for Esquire and the New York Post. [Source: Business Edition Super Lawyers by Timothy Harper]

Hasen weighs in on ballot-box-speech-case to be argued today

Today “the Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a case raising the question of whether Minnesota and other states can prevent people from wearing political apparel like a ‘Make America Great Again’ cap or a ‘pussyhat’ to the polling place. . . .”

“Political speech is perhaps the most protected form of speech under the First Amendment, but the right to vote free of intimidation and in tranquility is also compelling. The Supreme Court recognized this point in Burson v. Freeman, which upheld against a First Amendment challenge a 100-foot campaign-free buffer zone around polling places. The case was an unusual one in that a plurality of the court applied “strict scrutiny” to the Tennessee law and still upheld the law. Strict scrutiny is usually said to be “strict in theory and fatal in fact,” but in this case, it was the former.”

“The usual stalwarts of the First Amendment, including Justices Anthony Kennedy and Antonin Scalia, concurred separately to uphold the law. Justice Scalia’s opinion was especially notable, because he recognized that polling places—and the areas around them—traditionally were “nonpublic forums,” places where the government can stop political expression for important reasons so long as the government does not discriminate among viewpoints. If Minnesota had sought to ban Tea Party paraphernalia but allowed “MoveOn.org” T-shirts, that would have clearly been unconstitutional. . . .”

“In many ways this case is even stronger than Burson, because it involves not the area around polling places but polling places themselves, and because voting has only become more contentious in the intervening years. As a Brennan Center brief in Mansky points out, ‘Please I.D. Me’ buttons are part of a political movement raising fears of voter fraud, and such buttons can both intimidate and confuse voters and poll workers. But more generally, a voter should not have to come into the polling place to face a group of voters—or even poll workers—wearing campaign buttons or shirts. No one should feel pressure at the polling place to vote one way or another.”

“The solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly. If there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground. . . .”

Opposing View

George Will, With case on coerced union fees, the Supreme Court has a chance to correct itself, Washington Post, Feb. 22, 2018

ACLU’s Lee Rowland discusses campus free speech “realities and myths”

LeeRowland (Tedx Talk)

This from  Adam Steinbaugh writing for FIRE (Feb. 26, 2018) “‘My name is Lee Rowland. I’m an unabashed progressive. I’m a skeptic. I’m anti-authoritarian. For all of those reasons, I believe in a robust and indivisible First Amendment.'”

“That’s how Lee Rowland, a First Amendment attorney with the ACLU’s Speech, Privacy, and Technology Project, concludes her TEDx talk at the University of Nevada, Reno — a short discussion of the importance of free speech, on and off campus, that is well worth your time.”

“Rowland summarizes free speech issues confronting society today — from Colin Kaepernick to hate speech — and places them in the context of freedom of expression in higher education. She explains that skepticism of whether constitutional rights are equally distributed is well warranted — and not just those recognized by the First Amendment — but the answer is not to draw back on free speech rights, but instead to ‘ratchet everybody up to that same level of protection for constitutional rights.” It’s ‘our job to make sure that everybody benefits from those rights.’ . . .”

Sign Controversy in N.H. Town  

The town of Gilmanton recently warned residents who displayed these signs that they were violating local zoning rules and, potentially, state political advertising disclosure laws. (ACLU of New Hampshire)

 Casey McDermott, In Gilmanton, Lawn Sign Scuffle Turns Into Debate Over the First Amendment, New Hampshire Public Radio, Feb. 28, 2018

Seven Forthcoming Books

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