Tagged: Constitutional Law

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FAN 145 (First Amendment News) David Cole: “Does anyone believe that the ‘free marketplace of ideas’ is functioning?”

In a recent issue of the New York Review of Books, the ACLU’s David Cole reviewed:

David Cole

“‘Civil liberties once were radical.’ So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, ” writes Cole. “By 1938,” he adds, “Roger Baldwin, the ACLU’s executive director, proclaimed that the ACLU had ‘no ‘isms’ to defend except the Bill of Rights.’ The ACLU had shifted its focus from labor’s struggle for economic justice to a defense of the ‘neutral’ rights of speech and association, rights that could be invoked not just by individual workers and unions but by Henry Ford and big business. As Baldwin put it one year later, ‘We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.'”

“Sam Lebovic tells a related story in [his book]. In his account,” Cole notes, “American constitutional law has favored a classical liberal ‘freedom of the press,’ which stresses the importance of staving off state censorship, over ‘freedom of the news,’ a concept formulated by Franklin Delano Roosevelt, which envisions the state working proactively to ensure access to information against concentrated media ownership. Lebovic argues that the liberal conception of free speech and a free press, founded on the ‘free marketplace of ideas,’ is and always has been inadequate to address the threats to ‘freedom of the news,’ including not just the power of media moguls, but also the consequences of the Internet and the state’s over-reliance on secrecy.”

In a world where claims of “fake news” fill the airwaves, Cole asserts that “following Donald Trump’s election, on a campaign that relied on outright lies and stubborn denials of the truth, does anyone believe that the ‘free marketplace of ideas’ is functioning?” Then again, he stresses that “the inauguration of Donald Trump has dramatically reinforced the continuing importance of traditional core First Amendment rights.”

We are neither anti-labor nor pro-labor. With us it is just a question of  going wherever the Bill of Rights leads us. — Roger Baldwin (1940)

A new focus — look beyond the courts 

We were weened in an era when courts were often seen as the great defenders of equality. Even so, Cole invites his readers to reassess that reliance: “if we are to attain a more egalitarian exchange of ideas, it will be more likely through the political rather than the judicial branches.”

And as more and more liberals urge government intervention in the free speech arena, Cole counsels caution: “empowering the state to correct perceived deficiencies in the marketplace of ideas is a cure that is worse than the disease. ”

So what is the baseline for Cole’s conception of free speech?  “The best argument for protecting speech,” he stresses, “is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives. . . . [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.”

SPLC: Google, Hate Crimes, and Algorithms

In case you missed it, the Southern Poverty Law Center recently issued a story titled  Google and the Miseducation of Dylann RoofRecall, Roof was the man who murdered nine African Americans during a Bible study. How did Roof go from being someone who was not raised in a racist home to someone so steeped in white supremacist propaganda the man responsible for the massacre at the historic Emanuel A.M.E. Church in Charleston? Here is how the SPLC story answered that question:

“The answer lies, at least in part, in the way that fragile minds can be shaped by the algorithm that powers Google Search.

It lies in the way Google’s algorithm can promote false propaganda written by extremists at the expense of accurate information from reputable sources.

See SPLC video here

Roof’s radicalization began, as he later wrote in an online manifesto, when he typed the words “black on White crime” into Google and found what he described as “pages upon pages of these brutal black on White murders.”

SPLC President Richard Cohen

The first web pages he found were produced by the Council of Conservative Citizens, a crudely racist group that once called black people a “retrograde species of humanity.” Roof wrote that he has “never been the same since that day.” As he delved deeper, because of the way Google’s search algorithm worked, he was immersed in hate materials.

Google says its algorithm takes into account how trustworthy, reputable or authoritative a source is.

In Roof’s case, it clearly did not.”

Speaking this past Monday evening the George Washington University’s Lisner Auditorium, SPLC President Richard Cohen said that at first Google was reluctant to tweet its algorithms but apparently did so afterwards. Mr. Cohen said that a meeting has been set up between Google and representatives from the SPLC.

Story: “Amazon releases Echo data in murder case, dropping First Amendment argument” Read More

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An Optimist in Pessimistic Times: Chief Judge Katzmann on Civic Education

Chief Judge Katzmann (Charlie Rose program)

One of the keys to the survival of free institutions is . . .  the way citizens do, or do not, participate in the public sphere. — Robert N. Bellah

*  * * 

Civic education is a force than can provide the ties that bind.”

Those are the words of Second Circuit Chief Judge Robert Katzmann, spoken recently on the Charlie Rose program. At a time when partisan politics and ignorance of our constitutional system of government have nearly become our collective default position, Judge Katzmann is busy rallying the cause of the civic-minded citizen. To that end, two years ago he launched “Justice for All: Courts and the Community.” Its Mission:

The federal judiciary is one of the three branches of the national government. It seeks to provide the fair and effective administration of justice for all persons and interests, regardless of race, color, creed, gender, or status. Federal courts and their state court counterparts provide a means for settling disputes peacefully, and help to foster democratic governance, consistent with the Constitution’s goals of “justice” and “domestic tranquility.” Those who founded our government recognized the critical importance of an independent national judiciary with a limited but essential role.

With the active participation of members of the Bar and community organizations working through several committees, its activities include:

  • hosting field trips to the courthouse for schools and community organizations to observe court proceedings and to meet with judges and court staff;
  • holding moot courts and mock trials for students;
  • developing educational resources for teachers about the law and justice system; developing learning centers;
  • creating library labs for students;
  • coordinating Constitution Day/Citizenship Day programs;
  • supporting essay contests;
  • sponsoring adult education programs in such areas as financial literacy;
  • fostering jury service; and
  • developing a speakers bureau whereby judges and members of the Bar visit the schools and community organizations to discuss the work of the courts.

Following in the footsteps of his mentors Senator Daniel P. Moynihan and Judge Frank M. Coffin, Katzmann is doing what he has long espoused: urging moderation counseled by knowledge coupled with a genuine commitment to improving our democracy. Can he succeed? That is the question.

With steadfast energy, the Chief Judge ventures to schools and elsewhere preaching the the Jeffersonian and Madisonian and Hamiltonian gospels of civic engagement . . . and those of Harriet Tubman and Rosa Parks, too.

Duly sensitive to our “red state/ blue state” differences, Judge Katzmann believes in his mission enough to broker this renewed experiment in democracy. Of course, like any experiment, it may fail. But he moves ahead nonetheless; color him an optimist. Again, his words: “Civic education is a force than can provide the ties that bind.”

For more information, go here.

* * See also * * 

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Stone’s “Sex and the Constitution” — a monumental work

Professor Geoffrey Stone

If you thought Geoffrey Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) was an incredible book, hold on: the University of Chicago law professor has outdone himself with his latest book — Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, March 21, 2017).

I know of what I speak: I’ve read both books (the latest in advance galleys). With a discerning sense of the currents of history combined with a masterful grasp of the undercurrents of law, Stone provides his readers with a wide-lens view of how sex and the law have interacted in the span of time dating back to ancient Athens. At once fascinating and disturbing, this book reveals how law works — both as a suppressor and liberator. Witness, for example, the nightmarish world of Anthony Comstock (1844-1915) in which countless lives were sacrificed on the altar of Victorian values. Contrast that with the emergence of a new day brought about by Lawrence v. Texas (2003), which thanks to the lawyer Paul M. Smith and the jurist Anthony M. Kennedy helped to free us from the shackles of sexual bigotry. It’s all there, and more, is this superbly crafted book.

That “more” includes everything from the rigid righteousness of St. Augustine (who was a lustful sinner before he became a revered saint), to those ever-so-pious Puritans who loved to lash the impure, to the Temperance Movement crowd and their campaign to ferret out lust in books (and in loins, too, by way of “anti-masterbation devices”), to those entrusted with enforcing Comstock morality and who felt it their God-given duty to persecute the likes of Margaret Sanger (the birth-control activist) and Ira Craddock (author of Right Marital Living), to Attorney General Alberto Gonzales who with zealous conviction launched the Obscenity Prosecution Task Force, to the Moral Majority’s Grand Poobah, Jerry Falwell, and his insistence that the government not spend any money to combat AIDS because this “plague” was the “judgment of God,” to all those who so vigorously opposed gay marriage because it threatened the continued viability of traditional marriages. Oh, the price we have paid for those virtues bequeathed to us by St. Augustine!

As one turns the pages of this book, something of the marvelous freedom-affirming spirit of When we Rise leaps from the pages of Sex and the Constitution. Still, this is not a work that takes liberties with facts; rather, it is a needs-to-be told story presented with legal acumen and a sophisticated sense of history. The scholar in Stone presents his case with nuanced precision, while the humanitarian in him presents his narrative with a gripping sensitivity to those subjected to the whip of sexual morality.

Have I overstated the importance of Sex and the Constitution? Have I exaggerated its worth? No, not at all; truth is my defense. If you doubt that, read the book. If you accept that, buy the book. If you disagree with that, challenge the book. But of this there can be no doubt: Sex and the Constitution is destined to be the defining work of its genre for a long, long time to come.

The epigraph quote for the prologue  to Sex and the Constitution is the same one used as the quote for epilogue.  And it is a fine line, one from Justice William Brennan’s opinion in Roth v. United States (1957):

Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages.

And it is also a fitting tribute to the memory of the Justice for whom Geoffrey Stone once clerked.

__________What Others Are Saying ___________

“No one should miss out on Stone’s spectacular tour through more than 2,000 years of sex, religion, culture, and law. A treasure-house of philosophical brilliance and legal and historical insight—not to mention erotic delights!—this masterpiece is the rarest of combinations: a page-turner that is also a magisterial font of erudite wisdom.”

Laurence H. Tribe, Carl M. Loeb University Professor, Harvard University

“A vivid, sweeping, and compellingly readable account of the history of sex, religion, and the law by one of our most prominent legal scholars.  This monumental study illuminates the origins and stakes of some of the most heated contemporary debates in constitutional law.”
George Chauncey, Samuel Knight Professor of History, Yale University

“Few, if any, legal scholars possess the capacious intellect and encyclopedic command of constitutional law and American history to make us see in an entirely new light what is perhaps society’s most commonly discussed subject.  In devoting his unique talents to Sex and the Constitution, Geoffrey Stone has created a volume of lasting significance that quickly will become essential reading for all who want to better understand sweeping cultural transformations that continue to roil society.”
Lee C. Bollinger, President, Columbia University

Sex, which has simultaneously inspired and eluded regulation through the ages, has been the focus of many of our greatest constitutional controversies.  No one is better suited than the always erudite and lucid Geoffrey Stone to provide the panoramic treatment that the subject deserves.  Unless you are the rare person who has no interest in either the Constitution or sex, you will want to read this book.”
David Cole, LegalDirector, American Civil Liberties Union

“This fascinating account of how sexual mores, religion, and law have intersected or—more often—collided throughout American history is really about even more than that. It’s about the role of law in maintaining a civil society in a diverse 21st century America, and a call to the Supreme Court to step up to the challenge.”
Linda Greenhouse, Pulitzer Prize winner & Knight Distinguished Journalist in Residence, Yale Law School

“Magnificent and monumental—a stunning blend of dispassionate analysis and deep moral conviction. Think that the United States was born as a Christian nation? Think again.”
Cass R. Sunstein, Robert Walmsley University Professor, Harvard     University

“A superb examination of the history of how the law has regulated sexual behavior and sexual expression from the ancient world to today. This is a brilliant book that offers a balanced and nuanced treatment of controversial topics such as obscenity, abortion, and same sex marriage.”
Erwin Chemerinsky, Dean and Raymond Pryke Professor, University of California, Irvine School of Law

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FAN 144 (First Amendment News) Cert Petition: Nursing student challenges expulsion for Facebook comments

Craig Keefe (Credit: Brainerd Dispatch)

Seattle. The case is Keefe v. Adams. It involves Craig Keefe. According to a story by David Hanners in the Twin Cities Pioneer Press, Mr. Keefe was a “semester away from finishing his studies to be a registered nurse. Like a lot of college students — like a lot of Americans — he was on the social networking site Facebook. But in December, officials at Brainerd’s Central Lakes College took exception to some of Keefe’s posts on his private Facebook page and kicked him out of school.Keefe says he wasn’t told what the problems were with his posts, nor was he told why or how anything he did violated school policy. Angered, he has taken his complaint to court.”

See District Court opinion here and Eight Circuit opinion denying First Amendment & Due Process claims.

In a cert. petition recently filed with the Supreme Court, the issues raised were:

  1. May a public community college use professional conduct codes to expel a nursing student from a professional degree program, without regard to First Amendment limits, for comments unrelated to the school’s curriculum posted to the student’s personal Facebook page?
  2. May a public community college expel a student for disciplinary infractions using less rigorous due process procedures applicable to decisions involving curricular speech?

The brief, filed by Robert-Corn-Revere (with Ronald London & Lisa Zycherman), begins: “This case raises the question of whether the First Amendment permits a public college to expel a student from a professional degree program under nebulous standards, such as ‘maintaining professional boundaries,’ for posting non-curricular com- ments on his Facebook page. A divided panel of the Eighth Circuit said that it could, even though the student’s speech was not part of any coursework or clinical requirement.In reaching this conclusion, the panel expanded the limits of the ‘professional speech doctrine,’ which permits regulation only where the speech is directly related to specific professional duties.”

“It also exacerbated existing circuit splits that seek to define when off-campus speech may be subject to regulation, when speech may be considered to be ‘school-sponsored,’ and when adult college students may be subjected to the lesser First Amendment protections often provided elementary and secondary school children”

“In the process, the panel approved more lax due process procedures under the guise of a curricular expulsion, when the college instead was imposing a disciplinary sanction. The decision ignored this Court’s precedents, which require more formal due process procedures in the case of disciplinary sanctions, and created further disarray among the circuits on this issue. Review by this Court is necessary to clarify the First Amendment and due process principles involved.”

The Petitioner urges the Court to review the case for the following reasons:

I.      This Court’s Review is Essential to Clarify First Amendment Limits of Applying Professional Standards to Restrict Non-Curricular Speech by Public College Students

A. The First Amendment Protects College Students and Others Subject to Professional Codes of Conduct

B. The Eighth Circuit Blurred the Line Between Curricular and Non-Curricular Speech,Widening a Rift Among the Circuits

C. Review by This Court is Imperative

II.     This Court’s Review is Essential to Clarify Due Process for Disciplinary Sanctions on Non-Curricular Speech ata Public College.

SCOTUSblog: Justices skeptical about social media restrictions for sex offenders

David T. Goldberg (Counsel for Petitioner)

This from Amy Howe over at SCOTUSblog: “At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were ‘incredibly important parts’ of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even ‘structure their civil community life’ around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from ‘a very large part of the marketplace in ideas.’ Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.”

“. . . . And perhaps most critically for the state, Justice Anthony Kennedy was unconvinced by the state’s efforts to rely on a 1992 case in which the justices upheld a Tennessee law that imposed a ban on soliciting votes or distributing campaign materials within 100 feet of a polling place. The court in that case ruled that the ban served the state’s interest in protecting its citizens’ right to vote freely, but Kennedy today dismissed the Tennessee ban as “not analogous” to North Carolina’s. If that is the best you have, he seemed to be saying to Montgomery, ‘I think you lose.’ If Kennedy is indeed on board, then Packingham seems to have five votes in favor of striking down the North Carolina law.”

Transcript of oral arguments here.

See also, Ruthann Robson, Court Hears Oral Argument on Sex Offenders’ First Amendment Right to Access Social Media, Constitutional Law Prof Blog, Feb. 27, 2017

9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others

This from Just Security: Recently, “the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism—including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country.” Here is the lineup (go to link for comments):

  1. Robert Corn-Revere (Davis Wright Tremaine)
  2. Lucy Dalglish (U. MD. Journalism Dept.)
  3. Arthur Eisenberg (NYCLU)
  4. Jameel Jaffer (Knight First Amendment Institute, Columbia)
  5. Dawn Johnsen (Indiana U. Law School)
  6. Lee Levine (Levine Sullivan Koch & Schulz)
  7. Burt Neuborne (NYU Law School)
  8. David Schulz (Media Freedom & Information Access Clinic, Yale Law School)
  9. Laurence H. Tribe (Harvard Law School)

See video clip: Sean Spicer on Politico’s Playbook, Dec. 2016

NYU Center for the Humanities hosts event on Trump & First Amendment

February 22, 2017: The panelists discussed the history of freedom of speech and what the new administration means for First Amendment rights.

“The election of Donald Trump has come with a broad attack on the press and on the freedom of political expression. What are likely to be the challenges to the First Amendment going forward, and how does America’s history of robust dissent support the protection of speech and press today?”

The panelists were:

  • Floyd Abrams, Renowned First Amendment Attorney, Cahill Gordon & Reindel LLP; Author, The Soul of the First Amendment (forthcoming in April)
  • Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; President of the American Civil Liberties Union, 1991-2008;  Author, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights
  • Stephen Solomon, Associate Professor of Journalism, Arthur L. Carter Journalism Institute, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech
  • Thomas Healy, Professor of Law, Seton Hall Law School; Author, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

More on Trump & the First Amendment 

You know, they always bring up the First Amendment. I love the First Amendment; nobody loves the First Amendment better than me. Donald Trump

  1. Noah Feldman, Trump’s Love-Hate Relationship With the First Amendment, Bloomberg View, Feb. 27, 2017
  2. Debra Cassens Weiss, Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filed, ABAJ, Feb. 27, 2017
  3. Jonathan Kraut, Trump violates First Amendment, The Signal, Feb. 27, 2017
  4. Sue Lempert, Fake news and the First Amendment, The Daily Journal, Feb. 27, 2017
  5. Nate Madden, Trump’s Fighting the Media, not the First Amendment, Conservative Review, Feb. 27, 2017
  6. Trump Thinks First Amendment is a Joke, The Young Turks, Feb. 24, 2017 (YouTube)

Reporters Committee files brief opposing journalist’s subpoena in Malheur stand-off prosecution

Ariel B. Glickman | Reporter’s Privilege | News |  February 23, 2017

The Reporters Committee for Freedom of the Press filed an amicus brief opposing compelled testimony of John Sepulvado, a former reporter with Oregon Public Broadcasting (OPB), which was authorized by Attorney General Jeff Sessions in his first week in office. Sepulvado had interviewed Ryan Bundy, one of the Malheur Natural Wildlife Refuge occupants, about the purpose of the occupation in January 2016.

Though there had been earlier contacts from prosecutors, a subpoena was finally served on Sepulvado last week. The subpoena does not limit the scope of the requested testimony. The government seeks to have Sepulvado authenticate his interview of Bundy, which would also open Sepulvado up to vigorous cross-examination by the defendants, all of whom oppose the subpoena.

Sepulvado’s attorney filed a motion to quash the subpoena this week. In its brief in support of that effort, the Reporters Committee noted the jurisdiction’s long history of maintaining the confidentiality of journalists’ work product and the importance of an independent press to an informed public. The brief highlights the chilling effect that compelled testimony of confidential newsgathering information would have on future sources, and how that would affect deeply-researched stories.

Michigan State to Ban White Boards From Dorms Read More

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

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

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

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

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

Commentaries 

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

* ** * * 

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

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

Senate Judiciary Committee Members 

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

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

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

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

Jim Newton of the LA Times

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

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

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

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

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FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule

 

Paul Gerlich & Erin Furleigh (credit: FIRE)

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

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

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

Judge Diana Murphy

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

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

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

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

Lisa Zycherman (one of Plaintiffs’ lawyers)

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

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

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

Ronald London (one of Plaintiffs’ lawyers)

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

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

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

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

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

6

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

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

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

Judge Neil Gorsuch

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

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

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

The Judge as Scholar 

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

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

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

Highlights of Free-Speech Opinions Authored by Judge Gorsuch 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Free Expression-Related Opinion Authored by Judge Gorsuch 

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

 Free-Speech-Related Opinions in Which Judge Gorsuch Joined

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

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

Commentators on Judge Gorsuch & His Free-Speech Jurisprudence

Marjorie Heins

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

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

David Keating

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

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

News Items & Commentaries re Judge Gorsuch & Free Speech

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

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

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

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

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

Judge Thomas Hardiman

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

Focus on Alito’s Morse concurrence 

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

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

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

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

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

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

What might we infer?

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

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

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

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

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

The University of Oregon Controversy

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

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

Professor Nancy Shurtz

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

Professor violated racial-harassment policy 

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

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

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

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

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

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

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

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

U.O. law prof weighs in

Professor Ofer Raban

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

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

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

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

Volokh joins in

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

Tucker Carlson & Professor Eugene Volokh

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

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

See Professor Volokh being interviewed by Fox’s Tucker Carlson

U.O. President responds 

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

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

President Michael Schill

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

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

“The case against free speech”

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

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

Professor Brian Leiter

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

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

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

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

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

Dorf & Tarrow on Fake News & the First Amendment

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

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

Forthcoming Books Read More

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

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

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

Floyd Abrams

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

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

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

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

The N.Y. Ethics Law

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

Randy M. Mastro, lead counsel for Plaintiffs

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

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

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

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

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

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

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

First Amendment Challenges

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

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

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

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

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

Plaintiffs’ Counsel 

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

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

Commentaries on the “Slants” Case

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

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

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

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

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

Tom Slater

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

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

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

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

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

Introduction, Tom Slater, Reinvigorating the Spirit of ’64

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Professor Ronald Mann

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

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

David Cole: “Donald Trump vs the First Amendment”

The ACLU’s David Cole

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

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

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

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

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

Professor Toni Massaro

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

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

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

Professor Margot Kaminski

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

Professor Helen Norton

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

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

Forthcoming Books Read More