Tagged: Constitutional Law


FAN 183 (First Amendment News) Pushback: Seidman’s “Can Free Speech Be Progressive?” 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 a 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.”


  • 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.”


EXCERPTS from California abortion-speech law case Read More


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


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


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

Read More


FAN 179 (First Amendment News) Does existing First Amendment law endanger our national security and sovereignty? Prof. Hasen says yes

The [Muller] indictment . . . described how fraudulent Russian accounts on Twitter tried to push real Americans into action. The indictment said the fake Twitter account @March_for_Trump had organized political rallies for Mr. Trump in New York before the election, including a “March for Trump” rally on June 25, 2016, and a “Down With Hillary” gathering on July 23, 2016. — NYT, Feb. 19, 2018

The Muller indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. — Richard Hasen

Below is a short piece I invited Professor Richard Hasen to write for FAN. Beyond his Election Law Blog and many publications, Hasen is also the author of the soon-to-be-released book entitled The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale University Press, March 20, 2018). I will interview Professor Hasen concerning his new book on Tuesday, March 6th, at 6:00 pm at the law offices of Ballard Spahr in Washington, D.C. (E-mail if you would like to attend.) 

* * * * 

Last week, special counsel Robert Mueller secured a grand jury indictment of 13 Russian nationals for interfering with the 2016 U.S. presidential elections by, among other things, paying for political advertisements promoting Donald Trump for President and opposing Hillary Clinton. The claims were based in part on federal law barring most foreign nationals from spending money to influence U.S elections. But thanks to the First Amendment, some of the activity described in the indictment may not be illegal. More importantly, going forward, the indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. Indeed, if Congress acts to curb future foreign interference, the Court could well face the question whether national security and sovereignty concerns should override the current line it has drawn in campaign finance law between express advocacy and issue advocacy.

Professor Richard Hasen

As I explain in a forthcoming article in the First Amendment Law Review, “Cheap Speech and What It Has Done (to American Democracy),” federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a Federal, State or local election. However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban.

For example, one of the ads targeted in the Mueller indictment read: “Hillary is a Satan,” and her crimes and lies had proved how evil she is.” Others promoted and opposed Black Lives Matter issues.  Neither likely violated the ban on foreign campaign spending. Foreign political advertising like the Black Lives Matter ads neither mentioning nor showing a candidate for office, likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes. And the Hillary-Satan ads, though mentioning a candidate, would not be illegal “electioneering communications” under the McCain-Feingold campaign finance law, because they were run on digital platforms rather than on TV, radio, satellite or cable. And they do not contain “express advocacy” because they never urge a vote against Clinton.

Deputy Attorney General Rod Rosenstein announcing release of Muller indictments

Proposed federal legislation such as the “Honest Ads Act,” would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. That could cover Hillary-Satan ads but not Black Lives Matter ads paid for foreign sources.

If Congress passed a statute purporting to make illegal all or some of the activity Russians engaged in during the 2016 election, such a statute would likely run into First Amendment resistance. After the Supreme Court decided Citizens United v. Federal Election Commission, a 2010 case holding that corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for public office, the Court summarily affirmed a lower court decision in Bluman v. Federal Election Commission. Bluman upheld a federal law barring foreign nationals—in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa—from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Obama.

Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the speaker does not matter for First Amendment purposes, the government has a compelling interest in banning foreign spending in our elections. “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”

Vladimir Putin

But the Bluman court, in an opinion by D.C. Circuit judge Brett Kavanaugh, narrowly construed the foreign spending ban to cover only express advocacy and not issue advocacy. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate.”

While this interpretation is not free from doubt—the statute is written broadly to cover all expenditures and not just independent expenditures—it seems like the kind of interpretation likely to be favored by the current Supreme Court. Indeed, it is not clear that the courts would accept a more clearly written foreign spending ban going beyond express advocacy and electioneering communications to cover foreign-funded ads meant to stir social unrest without using candidates’ names or likenesses.

These ads should be covered because they constitute a foreign government’s interference with American self-government. The First Amendment should not stand in the way of protecting our national security and sovereignty.


Cert. Petition filed in Commercial Speech Case Read More


UCLA Law Review Vol. 64, Issue 6

Volume 64, Issue 6 (December 2017)

Inner-City Anti-Poverty Campaigns Anthony V. Alfieri 1374
Movement Lawyers in the Fight for Immigrant Rights Sameer M. Ashar 1464
From Stop and Frisk to Shoot and Kill: Terry v. Ohio’s Pathway to Police Violence Devon W. Carbado 1508
The Puzzle of Social Movements in American Legal Theory Scott L. Cummings 1554
Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign Nan D. Hunter 1662
Community in Conflict: Same-Sex Marriage and Backlash Reva B. Siegel 1728



Rebellious Social Movement Lawyering Against Traffic Court Debt Veryl Pow 1770

FAN 178 (First Amendment News) On Hate Speech — Dershowitz Review Draws Reply

The bigot is not a stand-in for Tom Paine. .  . . Reality is not paradoxical. Our answer to the question, does defending Nazis really strengthen the system of free speech, is . . . generally no. Sometimes, defending Nazis is simply defending Nazis. –  Delgado &  Stefancic

Last week I profiled Professor Alan Dershowitz’s Washington Post review of Professors Richard Delgado and Jean Stefancic’s Must We Defend Nazis?: : Why the First Amendment Should Not Protect Hate Speech and White Supremacy. In the spirit of a robust exchange of views, I invited some replies to that review.

Professor Shannon Gilreath kindly accepted my invitation. Gilreath is a Professor of Law and Professor of Women’s, Gender, and Sexuality Studies at Wake Forest University. He is the author of The End of Straight Supremacy  (2011), in which he argues that anti-equality propaganda is incompatible with the right to equality enshrined in the Fourteenth Amendment. His reply is set out below (an invitation has been extended to Professor Dershowitz to respond).

               ______ REPLY ______

Must We Defend Nazis? is a timely update to Richard Delgado and Jean Stefancic’s now classic theory on equality and freedom of expression. Their theory has influenced a generation of lawyers to reconceptualize so-called hate speech, not for the ideas it expresses but for the injury—the discrimination—it effectuates. Once this perspective is understood, the old canard that we must “protect the ideas we hate” falls apart.

Delgado and Stefancic do not advocate the suppression of ideas or viewpoints, but rather the responsible regulation of certain types of speech as action—as actually doing the material discrimination they are designed to do. Their theory is not designed to shut down civil dialogue or to safeguard fragile feelings. It is about inequality and the role a narrowly-defined class of speech plays in creating and perpetuating inequality.

Professor Shannon Gilreath

In his review, Professor Alan Dershowitz instead worries about majoritarian condemnation of some ideas as “evil” and what perils to democracy might follow. None of the examples he offers is even remotely related to the kind of equality practice in speech that Delgado and Stefancic propose.

The case for “reasonable regulations”

First, he suggests that Delgado and Stefancic’s theory may support the silencing of activists who argue for Israel’s right to exist. But nothing in the book supports a heckler’s veto on political discourse. And there is definitely no support for anti-Semitic harangue dressed up as anti-Zionist critique. This is not to say that such things aren’t happening on some campuses. It is merely to point out that Delgado and Stefancic in no way support it or condone it. In fact, Professor Delgado and I collaborated on a symposium to address contemporary problems in free speech, and one of the issues included at Delgado’s suggestion was “the new anti-Semitism,” as Kenneth Marcus calls it, that is overtaking some campuses in the name of free expression.

Professor Jean Stefancic

In reality, Delgado and Stefancic offer a First Amendment theory that actually would allow reasonable regulation of anti-Semitic speech in ways that promote the equality interests of American Jews. The ACLU’s absolutist position instead prioritizes Nazis—a fact Dershowitz admits by his insistence that Nazi speech is at the core of the First Amendment. For Delgado and Stefancic, a commitment to equality lies at the core of a First Amendment utilized to operationalize the equality that, thanks to the Fourteenth Amendment, is at the heart of the Constitution itself.

When “neutral” is not neutral

Dershowitz prefers “neutral” speech regulations, dismissing the authors’ warning that such principles do little for the vulnerable in a system that pretends majority and minority start from the same position. He cites “time, place, and manner” restrictions. Such limitations may work if the question really was one of “hurt feelings,” as in regulations on funeral picketing, for example. They do nothing to deal with speech that produces discrimination at a systematic level. For example, a poster demanding that “Blacks Go Back to Africa” permitted in the common area of a dorm but prohibited to be nailed to the door of a black student’s dorm room is an absurd distinction. The discrimination happens regardless.

Professor Richard Delgado

Contrary to the ACLU position of “more speech,” this kind of message isn’t designed to encourage a civil political discussion on race relations. It is designed to frighten and silence. Similarly, a burning cross that is confined to the private property of a white supremacist, as in Virginia v. Black, still produces the inherent injury of discrimination through fear and intimidation, and those who are disposed to enact the harms it represents are buoyed in their desires by the display. The Court’s refusal to see the systemic meaning of such a display was farcical.

The difference in approach from Europe is, I think, explained by the fact that a majority of Americans, unlike Europeans, have never had to grapple first-hand with the kind of violence and misery anti-equality speech can produce. Public displays of anti-Semitic “news” and cartoons (Stürmerkasten) in Nazi Germany served both to cow Jews and to recruit perpetrators. It cannot happen here is too easy an attitude to take up. In fact, since Donald Trump took office, crimes of physical violence against racial minorities and gays and lesbians have risen sharply—over 400% for gays and lesbians alone (see here also). The sharpest spike in university campus crimes has been against Jewish students.

Dr. King & the Klan

Finally, Dershowitz supposes that the triumphs of Martin Luther King would have been impossible in a system other than the absolutist one he defends. This particular jab seems especially dishonest, since Brandenburg v. Ohio, establishing our recent, Klan-friendly theory of free speech, wasn’t decided until a year after King’s death. Suppressed in Dershowitz’s evenhanded treatment of the speech of Nazis and Martin King is the reality that Nazis promote inequality for minorities and King was promoting equality. This is no small detail for Delgado and Stefancic who underscore that ours is a constitutional system decidedly not neutral on equality. They offer us a theory of speech that prioritizes equality as a substantive right. And the guidance they provide may be more critical today than ever before.

* Related *

Symposium, “Equality-Based Perspectives on the Free Speech Norm — Twenty-First Century Considerations,” Wake Forest Law Review (2009) (introduction here)

→ Gilreath, ”Tell Your Faggot Friend He Owes Me $500 for My Broken Hand’: Thoughts on a Substantive Equality Theory of Free Speech,'” Wake Forest Law Review (2009)

→ Delgado & Stefanic, “Four Observations About Hate Speech,” Wake Forest Law Review (2009)

“Polish President signs controversial Holocaust bill into law”

The bill’s backers say talking about Polish complicity in Nazi genocide is a form of group defamation.

President Andrzej Duda (credit Janek Skarzynski/AFP/Getty Images)

This from James Masters over at CNN: “Polish President Andrzej Duda signed Poland’s controversial new Holocaust bill late Tuesday ahead of it being assessed by the country’s Constitutional Tribunal. The law would make it illegal to accuse the nation of complicity in crimes committed by Nazi Germany, including the Holocaust. It would also ban the use of terms such as “Polish death camps” in relation to Auschwitz and other such camps located in Nazi-occupied Poland….”

This from Jacob Sullum writing in Reason: “In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to [the new law . . . will make it] a crime to discuss the Holocaust too frankly.”

“The . . . ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland’s prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation.”

“The Polish [law] makes it a crime, punishable by fines and up to three years in prison, to accuse ‘the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.’ The legislation was motivated largely by anger at the common use of phrases like ‘Polish death camps,’ which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government.”

“‘German Nazi crimes are attributed to Poles,” Deputy Justice Minister Patryk Jaki complained . . . . ‘And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation.'”

“Some of these ‘insults’ happen to be true, since part of ‘the Polish nation’ was “complicit in the Nazi crimes.’ Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. . . .”

→  Atika Shubert & Antonia Mortensen, Polish Holocaust law sows ‘distortions,’ Poland’s chief rabbi says, CNN, Feb. 9, 2018 (includes video feed)

→  JTA, Poland isn’t the only country censoring speech about the Holocaust, The Jerusalem Post, Feb. 7, 2018

“New Slate Of Commissioners Should Elevate FTC’s Consideration of  First Amendment” Read More


FAN 177 (First Amendment News) “Make No Law” First Amendment Podcast Series Launched

Over at Popehat a new First Amendment podcast series has been launched; it’s titled “Make No Law” and is hosted on the Legal Talk Network. The podcasts are conducted by Kenneth P. White, a criminal defense and First Amendment lawyer at Brown White & Osborn.

“In the podcast, we explore the background, personalities, and social and historical context of some of America’s most important First Amendment cases. What made Walter Chaplinsky so angry that he uttered his famous “fighting words” in New Hampshire, and why was a crowd so angry at him? Why did Mary Beth Tinker decide to wear a black armband to school? What made Richard Ceballos’ supervisors retaliate against him for raising concerns about police misconduct, and how did he fight back? Who gets to decide whether a trademark like “The Slants” is offensive to a group — members of the group, or the government?”

Kenneth P. White

“Through interviews of some of the participants, historians, and experts, primary documents read by voice actors, and commentary, Ken White will explain both what these cases mean for your rights today, and what they meant to the real people who fought for their rights to produce these decisions. Every episode will be accompanied by a post here at Popehat with links to supporting materials: cases, oral argument recordings, historical materials, and so on. As the series progresses, we hope that you will send in your First Amendment questions and your suggestions for cases to cover.

“You can get the episodes on iTunes or Google Play, Soundcloud, or at the Legal Talk Network, or listen to them through a link right here on the blog. There’s also the RSS feed.”

First two episodes: Chaplinsky & Tinker 

(In this inaugural episode White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States.)

(White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today.)

Forthcoming episodes: Ceballos Matal v. Tam 

  • Episode Three: “On The Job”:  How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces?  I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.
  • Episode Four, “Disparagement, Contempt, and Disrepute”:  I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band’s name was racist and unacceptable.

California Superior Court Upholds First Amendment Claim in Same-Sex Wedding Cake Case Read More


FAN 176 (First Amendment News) Arizona State University to Host Major Conference on “Free Speech and Intellectual Diversity”

As you can see from the two news items mentioned below, the Sandra Day O’Connor College of Law at Arizona State University continues to make its presence known (and in big ways) in the First Amendment community.  Recall that last October the Law School co-hosted, with New York University Law School, an impressive conference to commemorate the 100th anniversary of Judge Learned Hand’s opinion in  Masses Publishing Co. v. Patten (1917).

And the folks at the SDOC College of Law are doing it again as they partner with the School of Civic and Economic Thought and Leadership and the Walter Cronkite School of Journalism and Mass Communication to host a major conference on free speech:

Free & Open to the Public

Register at: scetl.asu.edu

Questions: email scetlevents@asu.edu or call (480) 965-0155


Date: February 23, 2018

Location: ASU Tempe Campus, New Student Pavilion

Robert Post (Yale Daily News)

Opening Keynote Lecture

  • Robert Post
    Former Dean, Yale Law School
    “The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University”

Panel: “Why Do Students Need Free Speech on Campus?”

Moderator: Nicole Taylor, Deputy Vice President, Dean of Students, ASU Tempe Campus


  • Zachary Wood, Williams College
  • Matthew Foldi, University of Chicago
  • and Students for Free Expression Gabriel Sandler, Arizona State University
    Téa Francesca Price, Arizona State University

Professor Harvey Mansfield (Harvard Gazette)

Panel: “Free Inquiry and the Philosophy of Higher Education”

Moderator: Daniel Cullen, Professor, Rhodes College


  • Jim Stoner, Louisiana State University
  • Harvey Mansfield, Harvard University
  • Norma Thompson, Yale University

Professor Richard Garnett

Panel: “Intellectual Diversity and Higher Education: A Crisis?”

Moderator: Cristine Legare, Associate Professor, University of Texas, Austin


  • Joshua Dunn, University of Colorado, Colorado Springs
  • Neil Gross, Colby College
  • Richard Garnett, University of Notre Dame, Law School

Plenary Address

  • Jeremy Waldron, University Professor, New York University Heckling in a University Setting      “Heckling in a University Setting”


Date: February 24, 2018

Location: ASU Downtown Campus, Sandra Day O’Connor College of Law, BCLS 544

Heather McDonald

Panel: Negotiating Controversial Speakers on Campus

Moderator: Stefanie Lindquist, Deputy Provost, Academic Affairs and Professor, ASU


  • Heather MacDonald, Manhattan Institute
  • Bret Weinstein, Evergreen College
    Ulrich Baer, Professor, New York University

Professor James Weinstein

Panel: Freedom of Speech and Thought on Campus: What Role for the First Amendment?

Moderator: James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, ASU


  • Azhar Majeed, Vice President, FIRE
  • Donald Downs, University of Wisconsin, Madison
  • Laura Beth Nielsen, Northwestern University, and American Bar Foundation

Professor Larry Alexander

Panel: State Legislative Remedies to Free Speech Challenges on Campus: Are They Consistent with Academic Freedom?

Moderator: Mike Liburdi, General Counsel, AZ Governor Doug Ducey, and adjunct Professor, Sandra Day O’Connor College of Law

  • Eugene Volokh, UCLA School of Law
  • James Manley, Goldwater Institute
  • Larry Alexander, University of San Diego School of Law

Read More


FAN 175 (First Amendment News) Seattle University Law School to host Conference on Artificial Intelligence — includes panel on Robotic Speech

Be sure to have Alexa, or Echo, or Seri, or your Google Mini save the date for an important upcoming conference on artificial intelligence. On Saturday, February 17, 2018, from 9 am to 5 pm, Seattle University Law School will host a conference titled:

Singularity: Artificial Intelligence & the Law    (Casey Commons, Seattle University)

Welcome Remarks from Dean Annette Clark

Keynote Speaker: Ryan Calo, University of Washington School of Law

Panel 1, Robotic Speech and the First Amendment: David Skover, Seattle University School of Law; Helen Norton, University of Colorado Law School; Bruce Johnson, Partner, Davis Wright Tremaine. (This panel will discuss the issues raised in the forthcoming Collins & Skover book Robotica: Speech Rights & Artificial Intelligence (Cambridge University Press, May 2018), and will be moderated by Seattle University Law Professor Gregory Silverman.)

Panel 2, Accountability for the Actions of Robots: Ryan Calo, University of Washington School of Law; Elizabeth Joh, UC-Davis School of Law (This panel will focus on Professor Calo’s research into the liability consequences when robots cause harm; a third panelist confirmation is still pending.)

Panel 3, Ethical Considerations in Artificial Intelligence: Justin Tiehen, University of Puget Sound; Ariela Tubert, University of Puget Sound; Mark Van Hollebeke, Director of Privacy, Microsoft. (This panel features will consider discreet issues in AI with an emphasis on the ethical issues in evaluating new technologies, including where ethical and legal considerations intersect.)

Cato to host panel on Janus v. American Federation Read More