Tagged: Constitutional Law

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

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

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

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

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

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FAN 126 (First Amendment News) Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times”

This issue of First Amendment News reproduces the text of a speech (The Aims of Education Address) Professor Geoffrey Stone delivered at the University of Chicago on September 22nd. The Aims Address is given each year by a member of the University of Chicago faculty to welcome the entering college class. It is delivered in the University’s Rockefeller Chapel. (A video of Professor Stone’s address can be found here.

Given the controversy over campus speech codes and the University of Chicago’s open letter to its students, I thought the following remarks would help inform reasoned discussion of the issue of free speech on college campuses. I have added subheadings, hyperlinks, bullets, and photographs to Professor Stone’s text.     

Professor Stone is is the Edward H. Levi Distinguished Service Professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) and Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, W.W. Norton, Mar 21, 2017). 

 ________________________

Welcome to what you will come to know as The University and to the beginning of what I hope and trust will be one of the great adventures of your life. Whenever I think of students arriving here for the first time, I can’t help but recall an incident involving Justice Oliver Wendell Holmes.

Professor Stone delivering the Aims Address

Professor Stone delivering the Aims Address

At the time of this incident, Holmes was a very old man, nearing 90 years of age, in the autumn of his very long and very distinguished career as a Justice on the Suprme Court of the United States. On this particular occasion, Holmes was on a train headed north from Washington. He was deeply engrossed in reading a legal brief when the conductor knocked on the door to his compartment. Recognizing Holmes, the conductor respectfully asked for his ticket. Holmes looked in his coat pocket — no ticket. He looked in his vest pocket — no ticket. He reached into his trouser pocket — no ticket. Growing ever more frantic, Holmes began rummaging desperately through his briefcase — still no ticket.

At this point, the conductor, trying to calm Holmes, said “Never mind, Mr. Justice. It’s really not a problem. When you find the ticket, just mail it in to the company.” To which Holmes exploded: “You dolt! I don’t give a damn about your ticket, I just want to know where the hell I’m supposed to be going!”

In your first days on this campus, you will likely feel a bit like Justice Holmes — you will want to know where the hell you’re supposed to be going. My task this evening is to offer at least some sense of direction.

[A True Story about Rebels, circa 1918]

I should like to begin by telling you a bit about my world. It is the world of the law. More specifically, it is the world of constitutional law. Law is about stories. It is about real people involved in real disputes with real consequences. So, I shall tell you a story.

This story begins during World War I. As you may or may not know, World War I was not a particularly popular war with the American people, whose sympathies were divided. Many Americans vigorously opposed the Wilson administration’s decision to intervene in the conflict that was then raging in Europe, arguing that our intervention was both unwise and immoral.

Not surprisingly, such opposition did not sit well with the government. In 1917 Attorney General Thomas Gregory, attacking the loyalty of war opponents, declared: “May God have mercy on them, for they can expect none from . . . an avenging government.”

Gregory wasn’t kidding about the “avenging” government. In 1918, Congress enacted the Sedition Act, which made it a crime for any person to utter “any disloyal, . . . scurrilous, or abusive language intended to cause contempt . . . for the . . . government of the United States, the Constitution, or the flag.” True to the Attorney General’s threat, federal authorities launched more than 2,000 prosecutions against individuals who wrote or spoke against the war or the draft.

The defendants in Abrams v. US

The defendants in Abrams v. United States

One such prosecution involved five young, Russian-Jewish emigrants who were roughly your age at the time. In the summer of 1918, the United States sent a contingent of marines to Vladivostok in Russia. Concerned that this was the first step of an American effort to crush the Russian Revolution, these five self-proclaimed socialists threw several thousand copies of each of two leaflets — one in English, the other in Yiddish — from several rooftops on the lower east side of New York City.

The leaflets, which were boldly signed “The Rebels,” were addressed to other Russian emigrants. After stating that the Rebels hated “German militarism,” they warned those who worked in ammunition factories that they were “producing bullets, bayonets and cannon to murder not only the Germans, but also your dearest, your best, who are in Russia and are fighting for their freedom.”

The “Rebels” were immediately arrested by the military police. After a controversial trial, they were convicted of violating the Sedition Act of 1918. The trial judge, disgusted by their behavior and their beliefs, sentenced the Rebels to terms ranging up to twenty years in prison.

The Rebels appealed their convictions to the Supreme Court of the United States, claiming that their convictions violated the First Amendment, which guarantees that “Congress shall make no law . . . abridging the freedom of speech.” In Abrams v. United States, the Supreme Court, in a seven-to-two decision, rejected this claim and upheld the convictions. For the majority of the Court, this was an easy case. Because the natural tendency of the defendants’ speech was to generate opposition to the war, it was not within “the freedom of speech” protected by the Constitution.

Justice Holmes

Justice Holmes

Justice Oliver Wendell Holmes, the same Justice Holmes who some years later was to lose his railway ticket, dissented. Holmes’s dissenting opinion in Abrams is worth reading, for it remains one of the most eloquent statements ever written by a Justice of the Supreme Court about the freedom of expression.

Holmes wrote: “Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises . . . and want a certain result with all your heart you naturally [want to] sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Holmes therefore concluded that “we should be eternally vigilant against attempts to check the expression” even of “opinions that we loathe and believe to be fraught with death, unless they so imminently threaten” compelling government interests that an immediate check is necessary to save the nation.

Professor Harry Kalven (1914-1974)

Professor Harry Kalven (1914-1974)

I first read this passage, written almost a century ago, when I was a law student at this University, almost half-a-century ago. It has engaged my energy and curiosity ever since. Indeed, I think it’s fair to say that it was my puzzling over this passage under the probing tutelage of my law school professor Harry Kalven that, for better or worse, put me on the path to my career and, indeed, to where I stand before you this evening.

[The Aims of Education]

But now I must change direction, for this is not to be a discourse on the First Amendment. It is, rather, to be a talk about the aims of education. Happily, these are not unrelated subjects. To the contrary, the longer I have puzzled over the meaning of free expression, and the longer I have thought about education, the more the two seem to me to converge. Indeed, neither really is worth all that much without the other. And, with that in mind, I would like to turn to what I see as the intersection of free expression and education, and to the subject of academic freedom, for it is at this intersection that we will find the most fundamental values of the world you are about to enter.

I hope to accomplish three things in this part of my talk:

  • First, I will trace briefly for you the history of academic freedom, for it is only by understanding where we have been that we can appreciate — in both senses of the word — where we are today.
  • Second, I will talk a bit about this University and about the special role it has played in the struggle to establish and to preserve academic freedom.
  • And third, I will offer some thoughts about what all this means for you and about the responsibilities that we today bear in common.

It is important to understand that, like the freedom of speech, academic freedom is not a law of nature. It does not exist of its own force. It is always vulnerable, and should never be taken for granted. Indeed, until well into the 19th century, real freedom of thought was neither practiced nor professed in American universities.

To the contrary, any real freedom of inquiry or expression in American colleges in this era was smothered by the dominance of religion and by the prevailing theory of “doctrinal moralism,” which assumed that the worth of an idea must be judged by what the institution’s leaders declared its moral value to be. Thus, through the first half of the nineteenth century American colleges squelched any notion of free and open discussion or intellectual curiosity. Any student or faculty member who dared argue, for example, that women were equal to men, that blacks were equal to whites, or that homosexuality was not immoral would surely be expelled or fired without hesitation.

Similarly, through the first half of the nineteenth century, as the nation moved towards Civil War, any professor or student in the North who openly defended slavery, or any professor or student in the South who openly challenged slavery, could readily be dismissed, disciplined, or expelled. When a professor at the University of North Carolina expressed sympathy for the 1856 Republican presidential candidate, the students burned him in effigy and he was dismissed by the trustees. When a professor at Franklin College in Pennsylvania admitted he was not an abolitionist, he was promptly fired.

Several decades later, a furious battle arose over Charles Darwin’s theory of evolution, with traditionalists charging not only that Darwin was wrong, but also that his beliefs were dangerous, immoral, and ungodly. As a consequence of the furious battle in the academy over evolution, new academic goals came to be embraced.

Dean William Rainey Harper (1856 – 1906)

President William Rainey Harper (1856 – 1906)

For the first time, to criticize, as well as to preserve, traditional moral values and understandings became an accepted function of higher education, and by 1892 William Rainey Harper, the first president of the University of Chicago, could boldly assert: “When for any reason the administration of a university attempts to dislodge a professor or punish a student because of his political or religious sentiments “at that moment the institution has ceased to be a university.”

But despite such noble sentiments, the battle for academic freedom has been a continuing and fiercely contentious one. In the closing years of the 19th century, for example, businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. But that support was not without strings, and during this era professors who offended wealthy donors by criticizing their business practices were dismissed from such leading universities as Cornell and Stanford.

Then, during the World War I, patriotic zealots persecuted and, as we have seen, even prosecuted those who questioned the wisdom or morality of the war. In the face of such outrage, universities collapsed almost completely in their defense of academic freedom. Students and professors were systematically expelled and fired at colleges and universities across the nation merely for encouraging a spirit of indifference toward the war.

Similar issues arose again, with a vengeance, during the Cold War in the age of Joseph McCarthy. In the late 1940s and 1950s, most universities excluded those even suspected of Communist sympathies from university life. Yale President Charles Seymour, for example, went so far as to boast that “there will be no witch hunts at Yale, because there will be no witches. We will neither admit nor hire anyone with Communist sympathies.”

As this history demonstrates, the freedom to question, the freedom to challenge, the freedom to inquire is not to be taken for granted. Academic freedom is, in fact, a hard-bought acquisition in an endless struggle to preserve the right of each individual, student and faculty alike, to seek wisdom, knowledge, and truth, free of the censor’s sword.

[The Univ. of Chicago & Academic Freedom] Read More

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FAN 125.1 (First Amendment News) 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

“[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

“Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. . . .”

“(3) Other persons. It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

Marc Kasowitz

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

  • “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
  • “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
  • “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
  • “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane BambauerDonald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt NeuborneThere is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin RedishIf the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey StoneThis is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

* * *

The authors of the New York Times story were:

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FAN 125 (First Amendment News) Forthcoming book spotlights First Amendment freedom & LGBT equality

It comes out this March: The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, 320 pp.). The author is Carlos A. Ball, the Distinguished Professor of Law and Judge Frederick Lacey Scholar at the Rutgers (Newark) Law School.

Professor Ball is a prolific writer; his books include: Same-Sex Marriage and Children: A Tale of History, Social Science, and Law (2014); The Right to be Parents: LGBT Families and the Transformation of Parenthood (2012); From the Closet to the Courtroom: Five LGBT Rights Cases That Have Changed Our Nation (2010); and The Morality of Gay Rights: An Exploration in Political Philosophy (2003) and he is a co-editor of Cases and Materials on Sexual Orientation and the Law (2014).

Professor Carlos Ball

Professor Carlos Ball

In late March of next year, Professor Ball will turn his attention to the intersection of First Amendment freedom and LGBT equality. Here is the abstract of his forthcoming book:

“Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.”

“Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.”

“Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.”

Headline: “Pharmacy Argues There’s A First Amendment Right To Secretly Sell Execution Drugs”

Writing in BuzzFeed, Chris McDaniel reports that a “pharmacy whose drugs have been used in 16 Missouri executions is arguing that its actions are political speech protected by the First Amendment to the Constitution, and that its identity should remain secret.Death row inmates in Mississippi subpoenaed information from the Missouri Department of Corrections — including about the drugs and supplier — months ago. Missouri Attorney General Chris Koster has attempted to have the subpoena quashed, but so far has been unsuccessful. . . .”

A picture of Texas’ supply of pentobarbital. (Via court filing)

Picture of Texas’ supply of pentobarbital. (via court filing)

“In the past two weeks, the supplier has spoken up for the first time, under the pseudonym ‘M7.’ In a motion filed late Friday night, M7 said its drug sales are political speech. . . .”

“Missouri has paid M7 more than $125,000, all in cash, for execution drugs, according to documents obtained by BuzzFeed News. The amount they are paid per execution — $7,178.88 for two vials of pentobarbital — is well above market value, and experts have expressed concern that the cash deals could violate federal tax law.”

“‘The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights,’ the pharmacy’s attorneys wrote in Friday’s court filing.”

“Selling execution drugs ‘is an expression of political views, no different than signing a referendum petition or selling a t-shirt.'”

Headline: “Court rules 3D printing not protected under First Amendment”

Greg Camp, writing in Guns.com, notes that the “Fifth Circuit Court of Appeals has ruled that designs of firearms to be used on 3D printers are not protected by the free speech provisions of the First Amendment.  The court, siding with the State Department, found that such designs could constitute an export, given the lack of borders on the Internet, and as such would pose a danger to national security.”

Defense Distributed v. United States Department of State (5th Cir., Sept. 20, 2016) (District Court opinion, August 4, 2015 — here)

College Campuses & Free Speech Read More

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FAN 124 (First Amendment News) Ellen DeGeneres raises First Amendment defense in defamation case

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs? Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

 “It was all in good fun,” reported Elura Nanos, “until Ms. Pierce’s phone blew up with harassing calls and messages. And to make matters worse, she was on her way to a family funeral. Comedic timing really is everything.” In light of that, on “Ms. Pierce filed a lawsuit in Georgia Federal Court against  DeGeneres, alleging Invasion of Privacy, Misappropriation of Likeness, Defamation, and Intentional Infliction of Emotional Distress.”

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

The Plaintiff is being represented by Stacey Godfrey Evans.

See video clip, courtesy of LawNewz, here.

Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

unknown“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

“Circuit Judge Cheryle Gering entered an order dismissing the defendants on Aug. 24.”

“‘BPI’s decision to dismiss some of the other defendants does not release the primary targets of the litigation, nor does it have anything to do with the merits of our case,’ BPI attorney, Erik Connolly, of Chicago, said in a written statement. . . .”

“BPI sued ABC, its correspondents, federal officials and a former employee in September 2012 in Union County Circuit Court and will attempt to prove that a series of stories and broadcasts that began in early March 2012 defamed the company’s Lean Finely Textured Beef. . . .”

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley” Read More

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FAN 123 (First Amendment News) When you think of free speech, think of “45” — New book by Stephen Solomon explains why

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

“[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

“First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

unknown-1 “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

“In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

A video of this salon will be posted in an upcoming issue of FAN.

The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for Backpage.com” Read More

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FAN 122 (First Amendment News) Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)

There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –Justice Samuel Alito for the Court in Pleasant Grove City v. Summum  (2009)

Unknown-1It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:

Suppose that a State erected elec- tronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individu- als to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?

What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

UnknownAgainst that backdrop comes the cert. petition in Mech v. School Board of Palm Beach CountyThe issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.

The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”

Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:

  1. “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and 
  2. “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.

Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:

  1. “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
  2. “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”

Shawntoyia Bernard, representing the School Board, counters:

  1. “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker
  2.  “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
  3. “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”

 One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?

The case was distributed for Conference of September 26, 2016.

CJ Roberts  temporarily blocks subpoena over sex ads Read More

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FAN 121 (First Amendment News) New York law to combat Citizens United is “constitutionally unsound” says NYCLU

The headline on the official website of New York State reads: “Governor Cuomo Signs First-in-the-Nation Legislation to Combat Citizens United.” The news story begins by noting:  “Governor Andrew M. Cuomo today signed first-in-the-nation legislation (S.8160/A.10742) to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The legislation also takes significant steps to strengthen disclosure requirements for political consultants and lobbyists who provide services to sitting elected officials or candidates for elected office by requiring them to register with the state and reveal their clients.”

Unknown“This new legislation,” the news release continues, “will work to restore the people’s faith in government by instituting the strongest anti-coordination law in the country and explicitly prohibiting coordination in New York State election law for the first time. The legislation expressly identifies which activities constitute prohibited coordination, and strictly prohibits coordination in egregious scenarios, such as the ‘independent’ spender being an immediate family member of the candidate, as well as in subtle scenarios, such as the dissemination of a candidate’s campaign material by supposedly ‘independent” groups.'”

“Additionally, the legislation increases penalties for lobbying violations, while providing enhanced due process for individuals under investigation for potential violations.”

NYCLU Opposes Law

Robert A. Perry, the Legislative Director of the New York Civil Liberties Union, took issue with the law shortly before Governor Andrew Cuomo signed the legislation. “The bill,” he stressed, “is not only constitutionally unsound; it would promote public policies that are inimical to the mission of not-for-profit organizations that operate in the public interest.”

nyclu-logoThe legislation, he added, “includes several provisions that would regulate activity that is unrelated to electoral campaigns — including lobbying, as well as communications outside the definition of lobbying that addresses matters of public concern. Nevertheless, if enacted in law, the proposed legislation would direct government officials to regulate, and circumscribe, New Yorkers’ rights of speech and association.” Mr. Perry summarized his the NYCLU’s opposition to the measure this way:

  1. “[G]overnment regulation of lobbying and the imposition of disclosure requirements are consistent with the First Amendment only if they are limited to ‘direct communication’ with elected officials to influence legislation.”
  2. “[T]he legislation as well ast the state’s lobbying law and rules require the disclosure of information on contributors to organizations that engage in lobbying, even if the contributed funds are never utilized for that purpose.”
  3. [T]he mandated disclosure of personal information about contributors will undoubtedly have a ‘chilling effect’ on the exercise of protected speech and petition activities,” and
  4. [T]he First Amendment requires that the proposed regulations provide for exemptions for controversial organizations upon a showing of a ‘reasonable’ likelihood of harm from the disclosures.”

For those reasons and others, “the NYCLU objects to the legislation.”

[NB: The proposed measure was not amended after the NYCLU filed its letter of opposition to Governor Cuomo.]

See generally: National ACLU amicus brief (July 29, 2009) in support of Appellant in Citizens United.

Liberal Groups “Strongly” Oppose Legislation

Opposition to the New York law was also expressed by the following groups:

In an August 22, 2016 letter to Governor Cuomo, the groups stated:

“This poorly constructed bill will seriously harm some of New York’s most prestigious institutions, and infringe upon the rights of many public-minded New Yorkers to engage in their constitutionally protected right to comment and criticize. As a result, rather than advancing the public good, the legislation ends up as a secretly developed, clumsily drafted piece of legislation that in the end does little to advance meaningful reform other than dealing directly with problems caused by Citizens United. In fact, the legislation causes more problems than it solves by trying to solve a problem that wasn’t defined publicly and doesn’t really exist. We strongly urge you to veto” the measure.

* * *  *

See also David Keating, New York vs. the First Amendment: New ‘campaign finance’ legislation is an assault on political speech rights, New York Daily News, June 30, 2016 (“The legislation creates expansive new definitions of what constitutes illegal coordination between independent groups and candidates, and forces unprecedented reporting to the state by advocacy groups like the American Civil Liberties Union and the National Rifle Association.”)

Citizens United Group Loses Charitable Solicitation Suit  Read More

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FAN 120 (First Amendment News) Snapshots of David Cole #2: Chipping Away at Citizens United

If Citizens United is overturned, it will be because of the sustained efforts of critics in civil society to critique it, educate the public about why it’s wrong, and show through local initiatives that alternative reforms are possibleDavid Cole, August 22, 2016

This is the second post concerning  David Cole, the ACLU’s New National Legal Director (first post here).  In this post the focus is on Professor Cole’s views on the First Amendment and campaign finance laws, with a particular focus on Citizens United v. Federal Election Commission (2010).

This past April Professor Cole published an article in The Atlantic entitled “How to Reverse Citizens United.” Here are a few excerpts from that article (subheadings were added):

Change in the Court: New Opportunities & Challenges 

Professor David Cole

Professor David Cole

“Now, with a new Justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.”

“But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.”

Incremental Steps: The Slow March to Victory

“If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbook.”

Start with the States

“Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones.”

The Role of Scholarship

“Scholarship could similarly lay the groundwork for a new approach to campaign finance. One promising critique of the Court’s recent rulings concedes that spending restrictions limit First Amendment rights, but maintains that the constitutional interest in protecting speech is outweighed by other compelling considerations. Although the Court’s most recent rulings assert that the only legitimate basis for restricting campaign spending is curtailing bribery—what the Court calls ‘quid pro quo corruption’—a number of scholars are persuasively pressing a broader understanding of the state’s interests. For example, Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Robert Post, the dean of Yale’s law school, argues that ensuring ‘electoral integrity’ is essential to a functioning democracy, and justifies limits on the free flow of campaign cash. And in an important new book, Plutocrats United, Richard Hasen, a law professor at UC Irvine, maintains that the state’s interest in equality can justify rules aimed at countering money’s distortion of politics. Each of these arguments could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending.”

Related Articles by David Cole

  1.  The Supreme Court’s Billion-Dollar Mistake, New York Review of Books, January 19, 2015
  2. How Corrupt Are Our Politics?, New York Review of Books, September 25, 2014
  3. The Roberts Court vs. Free Speech, New York Review of Books, August 19, 2010

See also Jameel Jaffer, How Constitutional Change Happens: Q&A With David Cole, ACLU, April 4, 2016:

Cole: “My own sense is that incrementalism is pretty much all there is. The NRA, the gay rights groups, and the human rights groups all succeeded in significant part by acting incrementally. Campaign finance reform today is similarly proceeding incrementally, introducing clean election and public financing and disclosure reforms in the most receptive states first, and then seeking to spread those wins to other states. A full-frontal attack on Citizens United is unlikely to prevail, but attacking it around the edges shows more promise.”

 See generally, Jeffery Rosen Interview with David Cole: How Citizen Activists Can Make Constitutional Law, National Constitutional Center, April 18, 2016 (on YouTube) (discussion focuses on activist and litigation strategies)

Proposed Federal Law Would Ban Revenge Porn Read More

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FAN 119 (First Amendment News) — Snapshots of David Cole, the ACLU’s New National Legal Director

Professor David Cole

Professor David Cole

Now that Professor David Cole has been named the new national legal director for the American Civil Liberties Union, I plan to do several posts on him and some of his views on the First Amendment.

As some may know, David Cole was the main author of the briefs in two landmark flag-burning cases:  Texas v. Johnson (1989); and United States v. Eichman (1990). William Kunstler, who argued both cases, commented that as the author of those briefs Cole was “the intellectual architect of the courtroom victories.” (See also Collins & Chaltain, We Must not be Afraid to be Free.)

David Cole likewise argued Reno v. American-Arab Anti-Discrimination Committee (1999) (First Amendment challenge to the selective enforcement of the immigration law against Palestinian immigrants based upon their political associations and activities). National Endowment for the Arts v. Finley (1998) was another First Amendment case Professor Cole argued (First Amendment challenge to NEA’s politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made “taking into consideration general standards of decency.”) He also served on the Advisory Board of The Free Expression Policy Project.

His most recent book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016) (see also his remarks at Politics & Prose Bookstore, April 2016) (YouTube)

* * * * 

For now, let us turn to Professor Cole’s arguments to the Court in Holder v. Humanitarian Law Project (2010), the “material support” to terrorist organizations case.  Below are some selected excerpts from the oral arguments in that case:

Core political speech

Mr. Cole: Mr. Chief Justice, and may it please the Court: This as-applied challenge asks whether the government can make it a crime for Ralph Fertig and the Humanitarian Law Project to speak in association with the Kurdistan Workers Party.

Specifically, they seek to advocate for legal reform in Congress and the UN, to write and distribute articles supportive of Kurdish rights, to inform the Kurds of their international human rights and remedies, and to advise them on peaceful conflict resolution.

It is undisputed that the Kurdistan Workers Party engages in a wide range of lawful activities and that plaintiffs seek to support only lawful ends.

The government has a concededly compelling interest in combatting terrorism, yet it has not even tried to defend these prohibitions under strict scrutiny.

Instead, it rests its entire case on the proposition that criminalizing plaintiffs’ speech is a regulation of conduct, not speech, and therefore can be upheld under O’Brien. . . .

Justice Stevens: But, Mr. Cole, don’t you agree that some of the speech could be regulated?

Mr. Cole: –Some of my clients’ speech?

Justice Stevens: Some of the speech of your client.

Mr. Cole: I don’t think — I don’t think any of it could be prohibited, Your Honor, unless the government can satisfy the stringent scrutiny that this Court applies when Congress seeks to prohibit pure speech. . . .

Justice Stevens: You think all of the speech at issue is protected?

Mr. Cole: –I think that certainly all of the speech that I’ve just identified, which is the core–

 . . . . It’s core — and I think the reason, Your Honor, is it is core political speech on issues of public concern.

It is advocating only lawful, peaceable activities.

This Court has never upheld the criminal prohibition of lawful speech on issues of public concern.

“Money is different”

Justice Kennedy: Well, could the government, I assume — I assume you will say NGO or other organization or person from giving tsunami aid to one of these organizations, from giving them money?

Mr. Cole: I think money is different, Your Honor.

Justice Kennedy: Could they — could the government prohibit that?

Mr. Cole: I think money is different because it’s  . . . conduct, not speech.

Make Distinctions: Aid, support & membership

Justice Scalia: Any assistance you provide to these organizations cannot be separated from assistance to their terrorist activities.

Mr. Cole: Well, Your Honor, that is precisely the argument that the United States made to this Court in Scales.

And here I’m quoting from the government’s brief:

“Active membership can be proscribed even though the activity be expended along lines not otherwise illegal, since active support of any kind aids the organization in achieving its own illegal purposes. “

That was with respect to an organization that Congress spent 10 years studying, made findings that it was an international conspiracy directed and controlled by the Soviet Union with the aim of overthrowing the United States by force and violence, using terrorism.

And, nonetheless, this Court in Scales held you’ve got to distinguish between that aid and support and membership which is furthering the lawful activities and that which is furthering the illegal activities; otherwise you are penalizing the exercise of lawful speech.

The Court said the same thing in De Jonge.

Justice Ginsburg: Mr. Cole, as I remember, Scales upheld a conviction, wasn’t–

Mr. Cole: It did, Justice Ginsburg, but only because it interpreted the statute to be — to be limited to specific . . . members — active membership that is specifically intended to further the illegal ends of the group, precisely–

. . . .

Speech Tantamount to Material Support

Justice Kennedy: Suppose the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization.

Mr. Cole: Well, two things in response to that, Justice Kennedy.First, that is what the United States argued in Scales. And, again, the Court, not only in Scales but in a host of cases striking down Communist Party statute, said you have to distinguish between aid that’s intended to further lawful activity and aid that’s intended to further illegal activity when it’s in the form of protected activity — association, here speech and association.

And, secondly–

Justice Stevens: In those cases, the real question was whether membership was enough, wasn’t it?

Mr. Cole: Active membership . . .  which the government says constitutes more than mere nominal membership.

Justice Kennedy: And this is support. It’s different.

Mr. Cole: Well, Your Honor, in De Jonge, one of these cases, one of this Court’s first First Amendment cases, the government argued that Mr. De Jonge aided the Communist Party in its illegal ends by conducting a meeting for them and being their lead speaker at the meeting.

And this Court said: We’ve got to look at what he did, and what — yes, he conducted the meeting; yes, he was a member of the Communist Party; yes, he solicited people to join the Communist Party.

But what did he do? He advocated lawful peaceable activities.

Justice Kennedy: But there wasn’t a statute on the books that prohibited material support–

Mr. Cole: Well, I don’t think it would–

Justice Kennedy: And here there is, and this is in aid of that prohibition.

Mr. Cole: Right, but Your Honor, what would — if Congress came along after the Communist Party cases and said, okay, you’ve said we can’t make it a crime to criminalize membership in the Communist Party; we are now going to make it a crime to speak in conjunction with the Communist Party — do you think the decisions would have come out any differently?I don’t think so, because this Court has said that speech is different from money, that it–

Justice Scalia: I think it’s very unrealistic to compare these terrorist organizations with the Communist Party. Those cases involved philosophy. The Communist Party was — was — was more than a — than an organization that — that had some unlawful ends. It was also a philosophy of — of — of extreme socialism.And — and many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.

Mr. Cole: Your Honor, this Court accepted Congress’s findings.Congress’s findings were not that this was a philosophical debating society, but that it was an international criminal conspiracy directed by our enemy to overthrow us through terrorism. . . .

Justice Scalia: They joined it for philosophical reasons. These terrorist organizations have very practical objectives. And the only reason for joining them or assisting them is to assist those practical objectives.

Mr. Cole: Well, I don’t think that’s — I don’t think that’s fair, Justice Scalia. The Humanitarian Law Project has no interest in furthering terrorism, but the Kurdistan Workers Party are the principal representatives of the — of the Kurds in Turkey. They do have an interest in protecting the rights of the Kurds. They do have an interest in encouraging the Kurdistan Workers Party to — to disavow violence and engage in lawful peaceful means of resolving their disputes . . . .

*  * Additional Materials  * * 

David Cole on the ‘Material Support’ Law and the Constitution, American Constitution Society, November 30, 2010 (YouTube)

David Cole, “The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine,” 6 Harv. L. & Pol. Rev. 147 (2012)

James Bamford, David Cole & Margaret Russell — PATRIOT Acts I & II: New Assault on Liberty?, The Independent Institute, November 2003 (YouTube)

Ron Rotunda: “The ABA Overrules the First Amendment” Read More