Tagged: Constitutional Law

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FAN 133.1 (First Amendment News) FIRE to podcast First Amendment Salons

Lee Levine

Lee Levine

The Foundation for Individual Rights (FIRE) will podcast future First Amendment Salons, the next of which is scheduled for December 8th in Washington, D.C. That salon, the eleventh, will feature a discussion between David Cole (the new national legal director of the ACLU) and Jess Bravin (the Supreme Court correspondent for the  Wall Street Journal).

Henceforth, a podcast of the Salons will be available on FIRE’s So to Speak: The Free Speech Podcast station hosted by Nico Perrino.  A video of the Salons will also be available on FIRE’s First Amendment Online library.

Lee Levine, one of the Salon’s co-chairs, stated: “The First Amendment Salon has quickly developed a well deserved reputation as the leading forum for spirited and frank discussion about the role of the freedom of expression in contemporary society.  Now, more than ever, we believe it is vital to bring those discussions to as wide an audience as possible and we are delighted to be working with FIRE to make that happen.”

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Nico Perrino

Nico Perrino

“The First Amendment Salon has become an important platform for bringing together the most prominent figures in the First Amendment community to regularly discuss hot-button free speech issues,” said Perrino, FIRE’s director of communications. “We are thrilled to partner with the Salon’s organizers to share these essential conversations with a wider audience on So to Speak.”

* * * *

The salons, which began in April 2014, engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion of key free speech issues of our day. Each by-invitation only program involves a 90-minute discussion concerning a timely topic related to freedom of expression, whether in a contemporary Supreme Court case, book, article, legal brief, or memorandum.

In September 2014, the Salons formed an association with the Floyd Abrams Institute for Freedom of Expression at the Yale Law School.  And in August 2015, the Salon first went “on the road,” beginning with an event in Los Angeles and thereafter one in Chicago.  The last salon involved a discussion between Professor Geoffrey Stone and Judge Richard Posner (YouTube video here).

This past October the First Amendment Salon launched its first in the “More Speech” series of Occasional Papers” to be circulated by the salon and the Floyd Abrams Institute. The purpose of these “More Speech papers is to introduce the practicing First Amendment bar to some new and important scholarly work that might be useful in litigation. Thus, the Salon will invite a noted First Amendment lawyer to write a foreword to a particular scholarly article. By the same token, from time to time it will invite a noted First Amendment scholar to write a foreword to some important appellate brief, which we think might be of interest to the academic community. In this way, among others, the Salon hopes to enhance the communication between the practicing bar and the legal academy (and among journalists and activists, too).

The next Salon will be on April 5, 2017 at the Floyd Abrams Institute at Yale Law School. Adam Liptak (Supreme Court correspondent for the New York Times) will interview Mr. Abrams in connection with his latest book, The Soul of the First Amendment (Yale University Press, 2017).

Co-Chairs

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

Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Sandra Baron, Floyd Abrams Institute for Freedom of Expression
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
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FAN 133 (First Amendment News) Slants trademark case might be decided on statutory grounds

The Slants band

The Slants band

The briefs are still being filed in Lee v. Tamthe disparagement trademark case. While the briefs for the Petitioner are in

those for the Respondent have yet to be submitted.

John C. Connell

John C. Connell

No doubt, First Amendment arguments will demand a lion’s share of attention in those briefs. But will the Court ultimately go that far in deciding the case, or might it take refuge in the doctrine of constitutional avoidance and decide the controversial case on statutory grounds?

→ Enter John C. Connell, counsel of record for the Respondent (with him on the brief: Stuart Banner, Eugene Volokh, Ronald Coleman & Joel MacMull). In his brief, Mr. Connell devotes considerable attention to the following argument: “The Lanham Act’s disparagement clause does not bar the registration of respondent’s trademark.” Here are some excerpts from the Respondent’s brief related to this issue:

  1. Statutory Claim Preserved: “Under section 2(a) of the Lanham Act, does THE SLANTS ‘disparage  . . . persons, living or dead’? At every stage of this litigation, Simon Tam has argued that section 2(a) does not bar the registration of his trademark. He is thus entitled to defend the judgment below on this ground.”
  2. Pressing Need to Decided Statutory Issue: “Section 2(a)’s disparagement clause has existed for 70 years, but the Court has never interpreted it. The PTO has been left to develop its own disparagement jurisprudence, which has wandered ever farther from the statute’s text and from any reasonable understanding of what Congress intended. This case provides an opportunity for the Court to guide the PTO back to the text of the statute.
  3. No Statutory Disparagement: “Simon Tam and his band members are not disparaging Asian- Americans. They are doing precisely the opposite; they are appropriating a slur and using it as a badge of pride. Simon Tam is not a bigot; he is fighting big- otry with the time-honored technique of seizing the bigots’ own language. “Slant” can certainly be used in a disparaging way, but Tam is not using it that way. Even the most cursory awareness of the Slants’ music and the way it is packaged makes that clear.”
  4. PTO Misapplied Statutory Test: “Rather than considering the full context surrounding Simon Tam’s use of THE SLANTS, the PTO simply looked up the word ‘slant in several dictionaries. Rather than asking whether THE SLANTS disparages Asian-Americans generally, the PTO quoted the views of a blogger and a few self-styled spokespeople for Asian-Americans, to conclude that ‘a substantial composite of the referenced group find the term objectionable.’ Had the PTO followed the statute . . . the result would have been different.”
  5. Statute does not apply to “Collective Entities”: “The PTO also erred in construing section 2(a)’s bar on the registration of marks that may disparage ‘persons, living or dead’ to include marks that disparage non-juristic collective entities like racial and ethnic groups. In fact, the quoted phrase includes only natural and juristic persons. . . . Section 2(a)’s disparagement clause bars the registration of marks—such as JOHN SMITH IS EVIL—that disparage natural persons. It also bars the registration of marks—such as MICROSOFT IS EVIL—that disparage juristic persons. But the disparagement clause explicitly does not bar the registration of marks that disparage collective entities that are not juristic persons.”
  6. Original Purpose of Disparagement Clause: “The purpose of the disparagement clause was not to protect the civil rights of racial and ethnic minorities. Rather, the purpose appears to have been to bring American trademark law into conformity with the language of a recent treaty. In 1931, the United States ratified the Inter-American Convention for Trade Mark and Commercial Protection. 46 Stat. 2907 (1931). Article 3.4 of the Convention provided for the denial of registration to trademarks ‘[w]hich tend to expose persons, institutions, beliefs, national symbols or those of associations of public interest, to ridicule or contempt.’ One of the primary purposes of the Lanham Act was, as the House and Senate re- ports both explained, ‘[t]o carry out by statute our international commitments.’ Indeed, the full title of the Lanham Act was ‘An Act to provide for the registration and protection of trade-marks used in commerce, to carry out the provisions of certain international conventions, and for other purposes.’ . . .  Congress would not turn its attention to protect- ing the rights of racial and ethnic minorities for many years to come. When it did, beginning with the Civil Rights Act of 1957, Congress would refer to race and ethnicity explicitly, unlike in the Lanham Act. Section 2(a) thus protects natural and juristic persons against disparagement; it does not protect racial and ethnic groups.”

Such arguments may carry the day and thus could prevent the Court from reaching the First Amendment issues. Let’s see how oral arguments play out.

* * * *

Here are the Briefs in support of neither party:

See also Erica Goldberg, Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series): Part One: The Weighty Legal QuestionsIn a Crowded Theater, Oct. 24, 2016

True Threats to Press Freedom?

 Emily Bazelon, Billionaires vs. the Press in the Era of Trump, New York Times, Nov. 22, 2016 (“Once installed in the White House, Trump will have a wider array of tools at his disposal, and his record suggests that, more than his predecessors, he will try to use the press — and also control and subdue it.”)

Brent Griffiths, Trump to reporters: ‘You’ll be happy’ with my views on the First Amendment, Politico, Nov. 22, 2016 (“President-elect Donald Trump vowed that reporters would be ‘happy’ with his stewardship of the First Amendment under his presidency, despite past promises to make it easier to sue them. ‘I think you’ll be happy, I think you’ll be happy,’ Trump told New York Times reporters, editors and columnists gathered at the newspaper’s Times Square headquarters on Tuesday.”)

unknown Joe Concha, Breitbart News planning lawsuit against ‘major media company,’ The Hill, Nov. 15, 2016 (“Breitbart News Network, a pro-America, conservative website, is preparing a multi-million dollar lawsuit against a major media company for its baseless and defamatory claim that Breitbart News is a ‘white nationalist website,’” the statement reads.”Breitbart News cannot allow such vicious racial lies to go unchallenged, especially by cynical, politically-motivated competitors seeking to diminish its 42 million monthly readers and its number one in the world political Facebook page. Breitbart News rejects racism in all its varied and ugly forms. Always has, always will,” the statement continues.)

Peter Scheer, Can the First Amendment survive President Donald Trump?, Cal Coastal News, November 21, 2016 (“To get back at the New York Times, the Trump administration can go after its biggest shareholder, Mexican telecom magnate Carlos Slim. To get back at CNN, the Trump administration can have antitrust regulators in the Justice Department and FTC put the brakes on the proposed merger of Time-Warner (CNN’s owner) and AT&T.  And the same pain can be visited upon scores of other US firms, not limited to media, which, having criticized Trump’s policies, find themselves in the government’s crosshairs.”)

Susan Seager, Melania Trump’s ‘Revenge Lawyer’ Apparently Doesn’t Understand First Amendment, Law Newz, Nov. 19, 2016 (“Charles Harder, the Beverly Hills lawyer who destroyed Gawker as an act of revenge bankrolled by Silicon Valley mogul Peter Thiel and is now the attack-dog-lawyer for Melania Trump, wants to take down mainstream reporters and a 52-year-old Supreme Court decision. Problem is, like many tough-talking celeb lawyers, Harder misunderstands the law.”)

Ashly Cullins, Trump’s First-Amendment Nemesis Explains How He’ll Defend Any Defamation Lawsuits (Q&A), The Hollywood Reporter, Nov. 17, 2016  (“After then-candidate, now President-elect Donald Trump threatened to sue The New York Times and his sexual assault accusers for defamation in October, attorney Ted Boutrous turned to Twitter to tell the paper, and anyone else finding themselves in a similar situation, that he’d take on any free speech case brought by Trump, pro-bono. . .”

Question: What are some of the weapons that might be used against the press?

Boutrous’ Reply: “Subpoenas to reporters, going after whistleblowers, having an administration that’s even worse at responding to Freedom of Information Act requests, denying press credentials to news organizations, seeking prior restraints to stop publication of newsworthy information, and continuing to attack journalism and undermine its legitimacy from the bully pulpit of the presidency. We need vigorous, aggressive journalism as a democracy. The framers of the Constitution knew that people need to have accurate, factual information. If you have the president telling people that the best journalism in the world is wrong and evil, that is very harmful.”

Steve Benen, First Amendment faces unusual threats following Trump’s win, MSNBC, Nov. 14, 2016 (” One of the president-elect’s top aides raised the prospect of legal action against a critical senator; the president-elect himself is dishonestly attacking one of the nation’s top news outlets; Trump’s team is already taking new steps to limit press access; and the incoming Republican administration has taken aim at protesters voicing dissent in the wake of last week’s elections. If this is what we’re seeing in the first week – two months before Trump officially takes power – the First Amendment and its proponents are in for a very rough ride.”)

Mirren Gidda & Zach Schonfeld, Donald Trump’s Threat to Press Freedom: Why It Matters, Newsweek, Nov 12, 2016 (“Less than a month before the U.S. presidential election, the Committee to Protect Journalists issued an unprecedented statement denouncing the then-Republican nominee. ‘[Donald] Trump has insulted and vilified the press and has made his opposition to the media a centerpiece of his campaign,’ said the committee, a New York-based organization that promotes press freedom. ‘A Trump presidency would represent a threat to press freedom in the United States.’ With little more than two months before Trump takes the oath of office, the threat to the media—and the public’s right to know—is reality.”)

John Daniel Davidson, Mainstream Journalists Don’t Care About Free Speech Until Donald Trump Attacks It, The Federalist, Nov. 15, 2016 (“Trump’s cavalier attitude toward free speech isn’t unique. In fact, it’s a fundamental feature of the political Left. For all its wailing about free speech in the wake of Trump’s election . . . , the media spent eight years enabling and at times encouraging the Obama administration’s denigration of the First Amendment.”)

Hanging noose in yard unprotected by First Amendment Read More

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FAN 132 (First Amendment News) FIRE Launches First Amendment Online Library

This past Monday some 100 people came to the Washington, D.C. scenic offices of Jones Day where the Foundation for Individual Rights (FIRE) hosted an event to launch the First Amendment Library, the only such online library in the nation.

This from the press release: “FIRE’s First Amendment Library is a free, online database of First Amendment-related materials, including illustrated timelines, educational materials, unique articles, and more than 900 Supreme Court cases concerning the First Amendment. The content available in the library serves as the foundation for an an easy-to-use, ever-expanding resource for students, law clerks, lawmakers, judges, lawyers, journalists, and anyone else who wants to learn about the First Amendment.”

“The First Amendment Library is a one-of-a-kind knowledge hub for all things relating to our Constitution’s first freedoms,” said FIRE Executive Director Robert Shibley. “FIRE is excited to share this resource with the world, and we hope that it will generate more interest in the First Amendment and its important history.”

Greg Lukianoff, Ron Collins & Robert Shibley

Greg Lukianoff, Ron Collins & Robert Shibley

The program was introduced by Greg Lukianoff (FIRE’s president & CEO), Robert Corn-Revere (First Amendment Lawyer), and Robert Shibley (FIRE’s executive director).

Here are a few samples of some of the contents of the online library:

The online library will be updated regularly and expanded greatly in the months and years ahead. For example, in the coming weeks new content will be added concerning everything from the 1734 trial of John Peter Zenger to the list of First Amendment free expression cases decided by the Roberts Courts to First Amendment briefs filed in the Supreme Court by noted appellate lawyers.     

Board of Advisors

  • Floyd Abrams
  • Erwin Chemerinsky
  • Robert Corn-Revere
  • Lucy Dalglish
  • Charles Haynes
  • Lee Levine
  • Michael McConnell
  • Paul McMasters
  • Martin Redish
  • Catherine Ross
  • Nadine Strossen
  • Laurence Tribe
  • Melvin Urofsky
  • Eugene Volokh
  • James Weinstein

Some of those attending the event: Jim Caruso, Susan Cohen, Anthony Dick, Lee Levine, Ronnie London, Tony Mauro, Robert M. O’Neil, Sigrid Fry-Revere, Catherine Ross, Ilya Shapiro, Mel Urofsky, and Lisa Zycherman.

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Campus “grievance culture” tested in S.C. case 

The case is Abbott v. Pastideswhich is currently before the U.S. District Court for the District of South Carolina (Columbia Division). The current posture of the case concerns the Plaintiffs’ consolidated opposition to the Defendants’ motion for summary judgment and Plaintiffs’ cross-motion for partial summary judgment. The information set out below is from the Plaintiffs’ memorandum in support of their cross-motion.

University of South Carolina

  University of South Carolina

Facts: Here is how counsel for the petitioners summarized the facts: Plaintiffs in this case wanted to start a dialogue with their fellow students about the growing number of free speech controversies on American college campuses but learned the sad lesson that you can’t even talk about free speech these days without getting into trouble. They held a Free Speech Event at the University of South Carolina where they described recent cases in which freedom of expression had become a controversial issue. The event went well, but when a few students complained that they were offended and felt “triggered,” the University promptly began an investigation of the speakers, even though their event had been fully explained to USC officials and approved in advance.

University of South Carolina’s Student Non-Discrimination & Non-Harassment Policy (see here)

“Grievance culture” — “This case . . . illustrates how campus bureaucracies can favor grievance culture over the free exchange of ideas, and why structuring rules to nurture and encourage complaints about speech contributes to a mistaken belief by some that there is an American right not to be offended. Such misconceptions have been fostered by constitutionally unsound directives from the Office of Civil Rights of the U.S. Department of Education (“OCR”) and the U.S. Department of Justice (“DOJ”) that purport to establish a blueprint for regulating free expression on college campuses. USC unfortunately got entangled in this mindset and adopted policies to regulate student speech based on broad and nebulous terms using procedures that favor those who complain over the rights of speakers.”

Plaintiffs’ First Amendment Arguments

I. Defendants’ Investigation of the Free Speech Event Violated Plaintiffs’ First Amendment Rights in Ways that Preclude Qualified Immunity & Compel Judgment for Plaintiffs’

A.  Plaintiffs’ First Amendment Rights Are Clearly Establishes

B.  Forcing Plaintiffs to Justify Their Exercise of Free Speech and Threatening Sanctions Violated Their First  Amendment Rights

        1.  Defendants Misstate Controlling First Amendment Principles

        2.  Defendants’ Investigation Burdened Plaintiffs’ First Amendment Rights

II. USC’s Non-Discrimination & Non-Harassment Policy is Facially Invalid Because it is Vague, Overly Broad, & Fails to Incorporate Sufficient Safeguards for Free Expression

A. USC’s Non-Discrimination and Non-Harassment Policy (STAF 6.24) is Vague and Overly Broad

1. STAF 6.24 Restricts Speech Using Amorphous and Undefined Terms

2. The “Limiting Clause” of STAF 6.24 Cannot Rehabilitate a Constitutionally Defective Policy

3. USC’s Policy Fails to Implement the Required Constitutional Standard

 B. USC’s Reliance on DOJ and OCR Guidance is No Defense, & Instead Illustrates the Constitutional Deficiencies of its Policy

C. The Court Should Grant Plaintiffs’ Motion for Summary Judgment

→ Counsel for Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman

Related Documents & Articles

Ross Abbott, Why I Sued the School, The Daily Gamecock, March 2, 2016

Complaint and Exhibits (additional documents from PacerMonitor here)

For a discussion of the case, see The Academy Uncensored: Abbott v. Pastides 

Read More

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FAN 131 (First Amendment News) Forthcoming: Chemerinsky & Gillman on the importance of free speech on college campuses

It is one of the topics of our times — free speech on college campuses. As noted below, each week there are numerous news stories about this or that form of censorship endorsed by campus administrators. Now, two experts in the field of law and education have entered the marketplace of ideas in which this controversy continues.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Enter Dean Erwin Chemerinsky and Chancellor Howard Gillman with their next book: Free Speech on Campus (Yale University Press, summer 2017). Here is a draft of an excerpt from the preface to that book:

“Students are rightly demanding, and colleges and universities are striving to provide, greater diversity and an environment conducive to learning for all students. Often, though, these efforts have led to calls to restrict, punish, or disrupt speech by students and faculty members that is seen as creating a hostile learning environment, especially for those who have traditionally suffered discrimination. Some of this anger has been focused on speech that almost anyone would consider offensive and hateful. But there have also been calls to suppress speech that is merely politically controversial or contrarian. There are demands that campuses deal with “microaggressions” and require faculty to provide ‘trigger warnings’ before covering material that some students might find upsetting. Students have demanded—and received—formal investigations of possible violations of federal law after faculty members published scholarly articles in journals. The issues concerning speech on campus are complicated by the unprecedented ability for any person to quickly reach a large audience via social media. . . .”

Chancellor Howard Gillman

Chancellor Howard Gillman

“We fear that discussions over this issue, like so much else in society, are polarizing into two camps. One derides all efforts to protect students from the effects of offensive or disrespectful speech as ‘coddling’ and ‘political correctness.’ The other side believes that free speech rights are secondary to the need to protect the learning experience of students, especially minority students. “

“We write this book because we believe both sides are right and wrong. They are right in that both equality of educational opportunity and freedom of speech are essential for colleges and universities. But they are wrong in thinking that one of these objectives can be pursued to the exclusion of the other. Colleges and universities must both create inclusive learning environments for all students and protect freedom of speech. To achieve both of these goals, campuses may do many things, but they must not treat the expression of ideas as a threat to the learning environment. Freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education. . . . .”

There is more, much more, but I will stop there since the book is in the editing process. That said, the authors have kindly agreed to allow me to reprint a draft of the book’s table of contents:

Preface

Chapter 1:  The New Censorship

Chapter 2:  The Importance of Free Speech

Chapter 3:  The Special Role of Free Speech at Colleges and Universities

Chapter 4:  Hate Speech

Chapter 5:  Academic Freedom and Inclusive Learning Environments

Chapter 6:  What’s at Stake?

I will say more about this important book this coming summer when it is scheduled to be released.

Free Speech on College Campuses 

Heard on Campus: ‘The First Amendment and Diversity and Inclusion,’ Penn State News, Nov. 8, 2016 (video, participants: Robert D. Richards, Carla Pratt, Nancy J. LaMont, Stephen Ross, Victor Romero, & Maureen B. Cavanaugh

Susan Kruth, First Amendment Lawsuit Settled with Speech Code Revisions on 10 Arizona Campuses, FIRE, Nov. 8, 2016

Greg Piper, Satirical campus paper that was defunded because it offended people loses court battle, The College Fix, Nov. 8, 2016

Christina Hoff Sommers (credit: Aarushi Jain, Columbia Spectator)

Christina Hoff Sommers (see #10 below)
(credit: Aarushi Jain, Columbia Spectator)

  1. ASNE stands ready to defend First Amendment rights, strong democracy, iReach, Nov. 9, 2016
  2. Annalena Wolcke, A Brief Overview of “Freedom of Speech” on the University’s Campus, The Daily Princetonian, Nov. 9, 2016
  3. Sara Shepherd, National free speech group says KU is among schools with codes that ‘violate’ the First Amendment; University Senate free speech committee continues meeting, LJ World, Nov. 7, 2016
  4. Annika Cline, MCCCD Eliminates Free Speech Zones, Allowing Expression Everywhere On Campuses, KJZZ, Nov. 7, 2016
  5. Ray Stern, Free Speech Now Freer at Maricopa County Community College District, Phoenix Times, Nov. 7, 2016
  6. Van Nguyen, Conservative journalist Ben Shapiro criticizes campus censorship at YCT event, The Daily Texan, Nov. 4, 2016
  7. Cody Nelson, In campus free speech debate, nobody’s really winning, MPR News, Nov. 4, 2016
  8. D.C. McAllister, Free Speech Under Attack at Another College Campus, PJ Media, Nov. 3, 2016
  9. Pfeffer Merrill, Pro: Colleges must guard free speech, Evansville Couruer & Press, Nov. 3, 2016
  10. Cara Maines, Controversial feminist critic discusses trigger warnings, free speech amidst opposition on campus, Columbia Daily Spectator, Nov. 2, 2016
  11. A Public University Makes Students Choose Between Their First Amendment Rights & Graduation, Forbes, Nov. 2, 2016
  12. Lawrence Ross, Blackface on College Campuses Isn’t About Freedom of Speech; It’s About White Supremacy, The Root, Oct. 31, 2016
  13. Cliff Maloney, Jr., Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016

Ballot Selfies: Colorado & California — Different Results   Read More

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FAN 130 (First Amendment News) “Porn Panic” Prompts Pushback

There is nothing new about the assault on sexual content.  What is new is the rubric of public health concerns over sex trafficking and child safety to justify broad restrictions on sexual content, private censorship of sexual expression, and citing health and safety of sex workers to justify onerous restrictions on producers and performers.

That is how the Free Expression Network described a recent panel discussion it hosted, one titled  “The Assault on Sexual Expression.” The panel was part of an October 17, 2016 program held in Washington, D.C. It was moderated by Ricci Levy (President of the Woodhull Freedom Foundation); the panelists were Larry Walters (partner, Walters Law Group), David Horowitz (Executive Director, Media Coalition), and Joan Bertin (Executive Director, National Coalition Against Censorship).

Item: Do you remember the group named Morality in the Media? In keeping with the times, in 2015 the group changed its name to the National Center on Sexual Exploitation. The group’s mission: “Confronting sexual exploitation.” Apparently, morality has taken a backseat to concerns such as:

unknownConsider also this item from the Republican Platform for 2016: “The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the lives of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography, which is closely linked to human trafficking.”

It all sounds so liberal, so modern, and so unobjectionable. Exit the old Anthony Comstock mindset, enter the new pro women, pro children, and pro health mindset. But just as the anti-pornography movement hoists its new flag,  opposition to it is mounting in psychological and legal quarters.

Enter Lawrence Walters  and Dr. Marty Klein — a seasoned First Amendment lawyer and certified sex therapist.

War on porn over?

First, Mr. Walters with these exclusive statements to FAN: “For decades, the “War on Porn” was justified on the grounds that viewing explicit material is immoral, and masturbation is a sin. As time passed, and erotica became mainstreamed, these hackneyed claims wore thin. Now, all the top celebrities have a sex tape, the Adult Video News Awards are broadcast on Showtime, and porn sites get more visitors than Netflix, Amazon, and Twitter, combined. Moral acceptability of porn is rising, particularly among women who now make up 24% of the largest porn site users. The federal government has essentially given up on prosecuting obscenity prosecutions, with no new cases being filed since President Obama took office. In 2014, thinkprogress.com declared that the War on Porn was over, and the censors had lost.”

Larry Walters

Larry Walters

“The prior justifications for opposing sexually explicit media,” he added, “needed a 21st Century face lift if they were to survive. Thus was born the idea of porn as a ‘public health crisis.’ Health and fitness is all the rage, so the new battle cry had a nice ring to it. To give the campaign a boost, ‘experts’ began claiming that porn was also “addictive”, and generated harmful “erototoxins” that changed the chemical makeup of the brain. Naturally, Congress held hearings to explore this new flavor of porn panic.”

“One issue that unites virtually all lawmakers,” argues Mr. Walters, “is the fight against sex trafficking. In overwhelming majority votes, the House and Senate passed the controversial SAVE Act in 2015, imposing potential life imprisonment on anyone who advertises acts of sex trafficking. A bipartisan group of lawmakers has recently called upon the Justice Department to be more proactive in enforcing the law. Now sex trafficking is being used as another justification for the renewed War on Porn? A recent, comprehensive report funded by the DOJ concluded that pornography contributes to sex trafficking. The report, entitled; Identifying Effective Counter-Trafficking Programs and Practices in the U.S.: Legislative, Legal, and Public Opinion Strategies that Work, concludes that consumption of sexually explicit media ‘contributed to a more laisse-faire attitude toward [sex trafficking].'”

In sum, “labeling pornography as a public health crisis, addictive, and supportive of sex trafficking, fits the modern agenda. It’s a far cry from claiming that looking at nudie mags is immoral.”

Porn & anti-social behavior

51shpu5r-jl-_sx313_bo1204203200_Next, there is Dr. Marty Klein, author of a just-published book titled His Porn, Her Pain: Confronting America’s PornPanic with Honest Talk About Sex (Praeger, 2016). Here are a few items of interest from the book:

  • “Does porn lead to anti-social outcomes? Since free, high-quality porn flooded America 16 years ago, the rates of sexual violence, child molestation, and divorce [in the United States] have declined.”
  • “The overwhelming majority of Internet porn shows happy, smiling people enjoying playful, consensual sex.  Critics who focus only on the violent depictions on the fringe — which most people don’t watch — aren’t talking about porn, they’re using porn to talk about other things.”
  • “Women don’t have to compete with porn actresses any more than men have to compete with John Wayne, George Clooney, or Shia LaBeouf.  Remember, men aren’t relating to the women in porn, they’re relating to the characters the actresses play.”
  • “To say that porn demeans women is to deny the reality of some women’s passion, lust, and desire.  It’s to say that women never enjoy what men enjoy.  It’s to say that women don’t enjoy playing games with their sexuality, including power games.  It’s to say that women shouldn’t be who they are or enjoy who they are, but that they can only enjoy ‘authentic’ sexuality within limited (and historically stereotypical) bounds. This is not feminism.”

> > > See also Jerry Barnett, Porn Panic!: Sex and Censorship in the UK (Zero Books, August 26, 2016)

Next, enter Larry Walters, the First Amendment lawyer.

See also Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, California Law Review (2016):

Professor Jeannie Suk

Professor Jeannie Suk

“We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. . . . An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment.”

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→ See also David Post, A setback for First Amendment protection for anonymous speech, The Volokh Conspiracy, Oct. 31, 2016 (“the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all “Internet identifiers” just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.)

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→ Related items:

Ruthann Robson: Supreme Court Grants Cert. in First Amendment Rights of Sex Offenders to Access Social Media Read More

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FAN 129 (First Amendment News) A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press

In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”

Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)

“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York TimesThe Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”

Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”

“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]

Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump) 

The threat of litigation by “well-funded plaintiffs” 

Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”

“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”

Countersuits: Suing Trump for Defamation? 

Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016

* * * *

In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.

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Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

October 23, 2016: Donald Trumps threatens to sue sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”

Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”

Pro Bono Offers to Defend Against Defamation Suits Read More

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FAN 128 (First Amendment News) Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling

The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .”  –Catherine J. RossLessons in Censorship (2015) 

Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.

But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.

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Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”

Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)

“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”

Ten States Expand Student Press Rights (statutory rights)

  1. North Dakota (public colleges & high schools)
  2. Colorado 
  3. Pennsylvania 
  4. Iowa
  5. Kansas
  6. Arkansas 
  7. California
  8. Oregon
  9. Maryland (public colleges & high schools)
  10. Illinois (public colleges & high schools)

“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte

Related 

  • Oregon (protection for public college students)
  • California (protection private college students)
  • New Jersey (pending legislation: public colleges & high schools)

 Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)

→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)

→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)

Is downloading hacked Clinton e-mails a crime? Read More

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FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

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Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

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According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More

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FAN 127 (First Amendment News) Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”

The case is Bennie v. MunnA cert. petition was filed recently in the Supreme Court with Damien Schiff listed as counsel of record. Before proceeding to the First Amendment issue raised, consider the opening paragraph of the Eighth Circuit’s opinion in the case; Chief Judge William J. Riley wrote for the majority:

Damien Schiff, counsels for Petitioner

Damien Schiff, counsel of record for Petitioner

“Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators after they investigated him and his broker-dealer employer around the time a newspaper reported Bennie made unkind comments about the President of the United States. The district court found that even though the regulators targeted Bennie partly in retaliation for his constitutionally protected political speech, they did not do enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s claim failed. Because we cannot say that finding was clearly wrong, we affirm.”

The Chief Judge ended his opinion by declaring: “We are not of a definite and firm conviction that a mistake was committed by the district court such that the district court clearly erred by finding the state regulators’ actions against Bennie would not have quieted a person of ordinary firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504, we affirm.”

Circuit Judge Jane L. Kelly joined in the majority opinion and Circuit Judge Clarence Beam concurred in party and dissented in part.

 In his cert. petition on behalf of Robert Bennie, Jr., Mr. Schiff contends that the case raises the following question:

“Robert Bennie, a successful financial advisor, was one of the leaders of the Lincoln, Nebraska, Tea Party. Because Bennie called President Obama “a communist” in a prominent newspaper, state regulators pressured Bennie’s employer to impose heightened supervision, conduct unannounced audits, and levy other sanctions to provide them with ‘some comfort.’

“The Constitution prohibits government officials from retaliating against individuals for protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To prevail on a First Amendment retaliation claim, a plaintiff must show, among other things, that a person of ‘ordinary firmness’ would have declined to speak in light of the government’s adverse action. The courts of appeals have split on whether a trial court’s determination on this issue is subject to clear error or de novo review. The question presented, which the court below viewed as ‘likely [] dispositive,’ is: In light of the First Amendment’s strong speech protections, are “ordinary firmness” decisions reviewed on appeal solely for clear error, as the Third, Sixth, and Eighth Circuits hold, or are they reviewed de novo, as the First, Ninth, Tenth, Eleventh, and D.C. Circuits hold?”

 Mr. Schiff argued that review should be granted for the following reasons:

I. “The decision below deepens a conflict among the Court of Appeals

           A. Like the Eighth Circuit, the Third Circuit and the Sixth Circuit Review a Trial Court’s “Ordinary Firmness” Determination for Clear Error

           B. In Contrast, the First, Ninth,Tenth, Eleventh, and D.C. Circuits, Review a Trial Court’s ‘Ordinary Firmness’ Finding DeNovo

II.  Certiorari should be granted to bring clarity to an important and reoccurring federal question that is clearly presented in this case.”

In a blog post on the Volokh Conspiracy, here is how Professor Eugene Volokh viewed the matter:

Prof. Eugene Volokh

Professor Eugene Volokh

“I think that, when it comes to decisions about what would “chill an ordinary person’s speech,” appellate courts should not defer to trial court findings. This sort of question isn’t a pure question of historical fact, as to which such deference is usually proper; rather, it’s a question of application of law to fact, which courts should review de novo, especially when First Amendment issues are at stake. There was some Eighth Circuit precedent suggesting that courts should indeed defer on such questions, which is why I think the Eighth Circuit should have reheard the matter en banc; I quote the amicus brief below.”

“But for now, whether or not Bennie should have won his case, I think that the Nebraska regulators’ actions were quite wrong, as the Eighth Circuit panel pointed out; and I thought they were worth airing.”

Headline: “Federal Court Blocks Louisiana’s Online Age-Verification Law for Violating First Amendment”

According to an ACLU press release, a “federal judge has signed an order permanently preventing Louisiana from enforcing a 2015 state law that required websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.”

largerlogopictures_0“[Chief] Judge Brian A. Jackson had previously granted a preliminary injunction in the case, Garden District Book Shop v. Stewart. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.”

“The plaintiffs in the case are two independent booksellers, Garden District Book ShopOctavia Books, Future Crawfish Paper (publisher of Anti-Gravity magazine), the American Booksellers Association and Comic Book Legal Defense Fund. The lawsuit was brought by the Media Coalition and the American Civil Liberties Union.

“The law, enacted as H.B. 153, required that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tried to access the material, would have been a crime subject to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything”

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“To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.”

“The federal district court found in its preliminary injunction ruling that ‘[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.’ . . .”

Garden District Book Shop v. Caldwell (Oct. 7, 2016, U.S. Dist. Ct., Middle Hist., La.) (order of final decree & judgement)

→ Complaint for Declaratory & Injunctive Relief

Attorneys for Plaintiffs: Michael A. Bamberger, Richard M. Zuckerman, Esha Bhandari, Lee Rowland, Stephen A. Dixon & Candice C. Sirmon

[ht: Media Coalition]

Headline: “Environmentalists and Corporations Struggle Over Boundaries of Free Speech”

Writing in the Epoch Times, Tara Maclsaac, reports that “Activists and bloggers expressing concerns about the environmental practices of some companies have been hit with multi-million-dollar defamation suits.For example, four residents in Uniontown, Alabama, are being sued for comments they made on Facebook about a local landfill. The company that operates the landfill is claiming $30 million in damages to its business.”

“The highest court in Massachusetts heard arguments in a similar case on Oct. 7. Karen Savage and Cherri Foytlin wrote a blog post in 2013 alleging that scientific consulting company ChemRisk had oil industry ties. They had thus called into question a ChemRisk’s study that declared cleanup workers at the Deepwater Horizon oil spill site were not exposed to harmful airborne chemicals.”

Just think what a massive muzzle we’d all live with if we all thought we’d be sued at any moment if our opinions might be slightly inaccurate online.Lee Rowland

“In both cases—and hundreds of others popping up around the country every year—the defendants say the lawsuits were just meant to scare them into retracting their statements and discourage others from speaking out. . . .”

“David Green, president of Green Group Holdings, the company that owns the Uniontown landfill in question, [said]: ‘All local residents have the right to oppose us and to exercise their free speech right to protest if they want. What they don’t have is a right to intentionally make false and defamatory statements of fact that damage our reputation and our ability to do business—which is exactly what they have done.’ . . .”

Patent Law & the First Amendment — Judge Mayer’s Concurrence

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FAN 126.1 (First Amendment News) Court denies cert in “public official” defamation case

The question presented in Armstrong v. Thompson was “whether all (or nearly all) law enforcement offic- ers are “public officials” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).” Today the Court denied cert. in that case.

In his petition to the Court, Roy T. Englert, Jr. argued:

This case presents a recurring First Amendment question: whether a garden-variety law enforcement officer, with little or no role in setting public policy, must establish “actual malice” to recover for harm caused by tortious statements. A number of Circuits and state courts of last resort—where many issues relating to the First Amendment and defamation are decided—have held that every law enforcement officer is a “public official” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Accordingly, those courts, including the court below, require each and every law enforcement officer to show “actual malice” before recovering for any tort carried out through speech. In this case, despite an otherwise-error-free trial resulting in a jury verdict establishing that re-spondent had committed an established common-law tort, the court of appeals joined those courts and reversed on federal constitutional grounds after determining that Armstrong was a public official and that he had failed to prove “actual malice.” App. 14a-21a.

This Court should grant review. The rule applied below conflicts with decisions in other lower courts; “distort[s] the plain meaning of the ‘public official’ category beyond all recognition,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974); and deprives hundreds of thousands of individuals of the ability to obtain redress for needless, vendetta-driven attacks on their reputations and interference with their livelihoods.