Tagged: Election law

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FAN 192 (First Amendment News) The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech”

Dr. Anthony Leaker

Who is Anthony Leaker? Answer: He is a Senior Lecturer in Cultural and Critical Theory at the University of Brighton. Now this cultural critic has turned his attention to free speech. Perhaps taking his cue from Professor Steven Shiffrin (What’s Wrong with the First Amendment), Leaker’s forthcoming book, Against Free Speech (Rowman & Littlefield, November 16, 2018), may well be yet another example of the liberal flight from robust free-speech freedom.

Abstract: This book examines the renewed and vociferous defence of free speech witnessed in relation to a number of recent events, including the Charlie Hebdo massacre, the Brexit and Trump campaigns, and recent campus politics.Anthony Leaker argues that the defence of free speech has played a pivotal role in a resurgent right-wing nationalism, that it is the rallying point for a wider set of reactionary political demands, a form of aggrieved liberalism at best and patriarchal white supremacy at worst, aided by a complicit liberal centre.

By focusing on these events and situating them within the wider geopolitical context of a post-democratic, post-truth world of austerity, ongoing conflict in the Middle East, pasokification, and rising fascism, Leaker critiques the role that the defence of free speech has played in legitimising the scapegoating of oppressed minorities while deflecting attention from the egregious operations of power that have led to ever greater inequality, injustice and capitalist destruction.

This powerful book shows that free speech is in fact a myth, an ideological tool employed by those in power to sustain existing power relations.

Yesterday: Supreme Court Denies Cert. in Commercial Speech Case

The case is Contest Promotions, LLC., v. City & County of San Francisco. The issue in the case was whether the First Amendment permits a municipality to ban all signs, of any kind, advertising off-premises commercial activity, without making any showing that the ban furthers a substantial government interest in a direct, material and tailored way.

Just Launched — The FIRE Faculty Network

This from Julia Schwarz over at FIRE: “We’re excited to announce the launch of the FIRE Faculty Network, a diverse coalition of faculty interested in defending and sustaining academic freedom, free speech, and civil liberties on campus. By joining FIRE’s faculty network, you’ll receive information curated specifically for faculty, including the latest information on FIRE events, legal developments, strategies for activism, and noteworthy research and reporting related to free speech and academic freedom.”

“If you’re a faculty member, graduate student, or higher education professional interested in getting involved or staying informed on issues related to academic freedom and free speech on campus, sign up today!”

Upcoming: 2018 Faculty Conference 

“We’re also currently accepting applications to attend our 2018 FIRE Faculty Conference, taking place October 11-13 in Chicago, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel. We’re accepting applications on a rolling basis through July 31. Apply now to secure a spot — space is limited!”

“The conference will bring together faculty from a variety of disciplines and institutions to present research and discuss issues related to academic freedom and freedom of expression on campus. Beyond these discussions, faculty will meet peers from around the country who share an interest in defending academic freedom and promoting rigorous intellectual discourse. There is no fee to attend the conference, and those accepted will be eligible for a $750 travel stipend to assist with the costs of lodging and transportation.”

“If you have questions about the faculty network or the conference, please be in touch.”

Headline:” PETA — Texas A&M is violating First Amendment rights by blocking critics online” Read More

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FAN 190 (First Amendment News) Seattle U. Law School’s Homeless Rights Advocacy Project Issues Report on Begging Restrictions in Washington State

Jocelyn Tillisch

An important new report has just been released by Seattle University Law School’s Homeless Rights Advocacy Project. The 105-page report is titled Begging for Change: Begging Retsrictions Throughout Washington.

The report was prepared by:

The Homeless Rights Advocacy Project researched the laws of sixty-four cities across Washington State and found 121 ordinances that prohibit or restrict begging. An overwhelming number of these ordinances punish begging as a misdemeanor, inflicting on already vulnerable people ongoing and escalating collateral consequences.

Executive Summary

Drew Sena

The act of panhandling, commonly known as begging, is a constitutionally protected form of speech. But Washington’s cities are increasingly enacting ordinances that criminalizebegging. The consequences of criminalizing begging are severe and include violations of First Amendment and due process rights. Indeed, these ordinances often outlaw peaceful and nonintrusive behavior protected by the First Amendment. Some advocates assert that since 2015, “100% of federal court cases have ruled bans/restrictions [on begging] are unconstitutional.”

Further, these laws do not contribute to a solution for homelessness; instead, they function to remove visible poverty and homelessness from sight. Due to the nature and penalties of these anti-begging ordinances, the debtor’s prison grows, and the cycle of homelessness continues.

Key findings include:

  • The vast majority of Washington cities punish begging: 86% of surveyed cities have at least one law criminalizing begging in their municipal codes.
  • 83% of these laws result in a misdemeanor if violated. Criminal convictions exacerbate homelessness.8
  • Begging restrictions are proliferating: approximately 2/3 of all begging ordinances were enacted after 2001.
  • Washington’s second most popular laws are “aggressive” begging restrictions.
  • In the 1990s, courts began invalidating prohibitions on peaceful begging asunconstitutional restrictions on free speech. Many cities tried to circumvent this outcome by incorporating non-aggressive conduct into their so-called “aggressive begging” laws.
  • Only 2% of aggressive begging ordinances turn on the specific, objectively aggressive conduct of the person begging.
  • For the vast majority— 98% of aggressive begging laws—a violation can occurbased solely on a bystander’s subjective perception.
  • If a bystander feels fearful or even feels compelled to give, such feelings may be enough to make begging criminal regardless of whether the person begging has done anything objectively aggressive.
  • 42% of all aggressive begging ordinances rely exclusively on a bystander’ssubjective perception.
  • This reliance on whether a witness “subjectively” feels fear is highly problematic in light of well-established science proving people tend to feel fear simply when viewing a homeless person regardless of that person’s conduct

LSU’s Sexual Harassment Policy Challenged in Fifth Circuit

The case is Buchanan v. Alexander (No. 18-30148, 5th Cir.), which was summarily dismissed by the District Court. The matter is now before the federal circuit court.  As framed by counsel for Plaintiff-Appellant, “[t]his appeal will require the Court to interpret the law establishing limitations on a public university’s ability to terminate a tenured professor for engaging in academic speech that purportedly conflicts with anti-sexual harassment policies.”

Appellant Teresa Buchanan (credit: FIRE)

Fired LSU Professor Files First Amendment Lawsuit Challenging Speech Code Championed by Feds, FIRE, Jan. 21, 2016 (Note: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, which is part of its Stand Up For Speech Litigation Project.)

On appeal, the Plaintiff-Appellant makes the following arguments:

I.  Standard of Review

II.  LSU’S Sexual Harassment Policy is Facially Unconstitutional

A.  The First Amendment Requires Sexual Harassment Policies Targeting Speech to Be Narrowly-Framed, Precisely Defined, and Limited to Severe, Pervasive, and Objectively Offensive Behavior

  1. The Government Cannot Restrict Speech Merely to Avoid Offense, and Any Regulation of Speech Must Be Narrowly Focused and Clearly Defined
  2. Anti-Harassment Policies Are Subject to First Amendment Limits

B. The District Court Applied the Wrong Standard of Review

C. LSU’s Policy Fails to Satisfy Constitutional Scrutiny

II.  LSU’S Sexual Harassment Policy was Unconstitutionally Applied to Professor Buchanan

A. Professor Buchanan’s Speech is Constitutionally Protected

1. Academic Freedom is of “Transcendent Value”

2. The District Court Erroneously Held Dr. Buchanan’s Academic Speech Was Unprotected

a. The Undisputed Record Established That Dr. Buchanan Advanced Pedagogical Reasons for Her Speech

b. The District Court Misread the Law to Support Its Distorted View of the Record

B. LSU’s Poorly-Defined Policy and Haphazard Approach Allowed Anything to Be Defined as “Sexual

Harassment”

C. LSU’s Termination of Buchanan Violated the First Amendment

IV. Appellees Cannot Avoid Personal Liability 

→ Counsel for Plaintiff-Appellant 

U. Michigan Harassment Code Challenged  Read More

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

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

Anthony Comstock

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

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

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

Professor Amy Werbel

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

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

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

Related

YouTube video of Professor Werbel discussing her book

→ Introduction to Lust on Trial here

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

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

Advance Praise

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

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

Discounted priced for FAN readers

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

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

Association of University Presses issues statement on censorship

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

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

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

Nicole Mitchell (credit: Hayley Young)

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

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

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

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

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

Bradley Smith & David Keating

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

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

Executive Summary

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

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

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

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

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

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

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

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

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

First Amendment gerrymandering case to be argued in SCOTUS tomorrow 

Case:  Benisek v. Lamone 

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

Counsel

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

Select Amicus Briefs 

Commentaries 

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

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

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

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

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

* * * * 

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

Professor Richard Hasen

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

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

Deputy Attorney General Rod Rosenstein announcing release of Muller indictments

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

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

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

Vladimir Putin

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

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

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

Related

Cert. Petition filed in Commercial Speech Case Read More

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FAN 151 (First Amendment News) Morgan Weiland Meet Ira Glasser — The First Amendment & the Liberal Dilemma

[F]or those who believe that the Speech Clause has meaning beyond its strategic use, the application of the speech right must have limits. In other words, the outward creep of the speech doctrine’s boundaries need not be tolerated as “freedom for the [speech] that we hate.” — Morgan N. Weiland

I regard [the campaign finance issue] as the biggest liberal blindspot in First Amendment struggles in my entire career at the ACLU. – Ira Glasser 

∇ ∇ ∇ ∇ 

Morgan Weiland

Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition” is the title of a forthcoming article in the Stanford Law Review.

The author is Morgan N. Weiland, an attorney and PhD candidate at Stanford University specializing in speech, press, and technology law and ethics. Next year she will clerk for Ninth Circuit Judge M. Margaret McKeown. Here is how Ms. Weiland begins the abstract to her forthcoming article:

“Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.”

“This Article excavates the libertarian tradition through an analysis of Supreme Court cases that, beginning in the 1970s, consistently expanded speech protections by striking down limits on commercial speech and corporate political spending. The Court justified this expansion with the rationale of vindicating listeners’ rights in the free flow of information—the corporate benefit was incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. This is the libertarian tradition. Today, the tradition has abandoned listeners’ rights altogether, directly embracing corporate speech rights. . . .”

As Ms. Weiland sees it, the “libertarian tradition” threatens two longstanding free-speech theories:  “the republican and liberal tradition.” Against that conceptual backdrop, she adds:

“First, by reconceptualizing listeners as individuals whose interests are vindicated through deregulation, the libertarian tradition draws from and is hostile to the republican tradition, which emphasizes the rights of the public, figured as listeners. Second, because the libertarian tradition focuses on vindicating corporate speech rights, it strips away the hallmarks of individual autonomy central to the liberal tradition, leaving only a naked speech right against the state, which this article names ‘thin autonomy.’ If the two traditions have value, then the libertarian tradition is problematic.

This insight cuts against the widespread belief that to protect speech we must be willing to countenance nearly any application of the right, even—and perhaps especially—if it goes against our most deeply held beliefs. That view is a myth; the speech right must have limits.”

 Related 

Weiland on Press Clause & Shield Legislation 

“Weiland’s scholarship and policy work has also focused on the press clause and journalism. She is researching the doctrinal development of the press clause, a paper that was supported by Stanford’s Constitutional Law Center and presented at the Communication Department’s Rebele Symposium in April 2015.”

“Related to this research, Weiland has engaged extensively with the federal shield bill debate. She has spoken about the bill and its potential impact on journalism at AEJMC’s 2014 conference. Free Press, in a report titled “Acts of Journalism: Defining Press Freedom in the Digital Age,” notes that “[j]ournalism and First Amendment scholar Morgan Weiland has argued that lawmakers should simply drop the definition of ‘covered persons’ in both the House and Senate bills and rely instead on the House definition of journalism.” She advanced these arguments while working as a legal intern at the Electronic Frontier Foundation in 2013, where she critiqued and helped to change the legislation. Her work on congressional shield legislation is also featured in the Stanford Lawyer.” [Source here]

Podcast: Interview with former ACLU Executive Director Ira Glasser

[F]or me the First Amendment and all those always was a strategic argument. I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. . . .Ira Glasser 

Ira Glasser

Over at FIRE’s So to Speak podcast series Nico Perrino interviews one the ACLU’s giants, Ira Glasser (transcript here).

In this wide-ranging and spirited interview, the liberal Glasser speaks about everything from

  • his teaching math at Queens and Sarah Lawrence Colleges,
  • to the people who inspired him (e.g., Murray Kempton, I.F. Stone and Max Lerner),
  • to his admiration for Jackie Robinson,
  • to his early days in 1967 at the NYCLU with Aryeh Neier (Glasser is not a lawyer),
  • to his understanding of  how real political change comes about,
  • to his presence at March on Washington in 1963 when he was 25 (“I’d never seen anything like that in my life before, or since”)
  • to his activism during the Nixon years
  • to his views on the ACLU’s involvement in the Skokie case (“It was a surprise to us that it got so controversial”)
  • to his historical discussion of Buckley v. Valeo and how of campaign-finace laws were tapped to go after liberals,
  • to his views on progressives’ call to amend the First Amendment in order to overrule Citizens United (“You are handing your enemies the tools to suppress you!”)
  • to his reply to Perrino’s last question: “What are you most proud of?” — Glasser: “There are two answers: One answer is substantive, and one answer is organizational . . . .” [You’ll have to listen to the podcast or read the transcript to hear the rest of Glasser’s answer.]

Related 

[B]ack in 1972, the ACLU, which by the way is . . . a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. Ira Glasser (2011)

From Stanford Law Review Online: Judge Neil M. Gorsuch on Free Expression 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

1

FAN 136 (First Amendment News) 2016: The Year in Review, including “the best of”

This is the 43rd and last FAN post for this year. All the hyperlinked posts for this year are listed below by month. Also below are some highlights of the past year along with a few “best ofs” of 2016:

Selected Highlights

Deaths: Justice Antonin Scalia. See FAN 97.1: Justice Scalia Dies — Free-Speech Legacy (Feb. 13, 2016)

Supreme Court: The Court decided two First Amendment free speech cases:

Retirements: Steven Shapiro, the ACLU’s national legal director

Biggest First Amendment issue of 2016: Campus free-speech controversy (yet again!)

Beta launch of FIRE’s online First Amendment Library (Nov. 14, 2016)

Man of the Year

John Ellison, University of Chicago Dean of Students

Letter to the Class of 2020

Woman of the Year

Rhode Island Governor Gina Raimondo

vetoes overbroad “revenge porn” bill

___________________________________________

The First Amendment & The Best of 2016

unknown

 Best Supreme cert. petition: Deepak Gupta, brief in Expressions Hair Design v. Schneiderman

 Best Supreme Court amicus briefs:

Best Supreme Court oral argument: Thomas Goldstein in Heffernan v. City of Patterson (2016)

Best lower court First Amendment opinionWomen’s Health Link, Inc. v. Fort Wayne Public Transportation Corp. (7th Cir., 2016, per Posner, J.)

Best lower court amicus briefWikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

 Best new First Amendment organization: Knight First Amendment Institute (see here)

 Best group defending First Amendment rightsFoundation for Individual Rights in Education (FIRE)

 Best report: PEN America, And Campus for All: Diversity, Inclusion & Free Speech at U.S. Universities

 Best speech: Geoffrey Stone, “Free Speech on Campus: A Challenge of Our Times

 Best interview: Nico Perriono, The Daughters: Carlin, Pryor & Bruce Speak OutSo to Speak

 Best book: Stephen Solomon’s Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (see Salon discussion here)

Best documentaryCan We Take a Joke?

Best essays:

 Best law review articles:

Best scholarly conferenceBrooklyn Law Symposium: “Free Speech Under Fire — The Future of the First Amendment” (see also here)

Best conference for practitionersAbrams Institiute Conference on Commercial Speech (June 13, 2016)

Best new First Amendment blogIn A Crowded Theater

Best event: Newseum Institute: Pear v. United States (see also here)

Best funder of First Amendment:  John S. and James L. Knight Foundation (see here)

Best supporter of the First Amendment: Flying Dog Beer (see here and here)

→ The Year in Review: FAN Posts for 2016 ← 

January

FAN 92: Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition (Jan. 6, 2016)

FAN 93: “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer (Jan. 13, 2016)

FAN 94: Brooklyn Law School to Host Symposium: “Free Speech Under Fire — The Future of the First Amendment” (Jan. 20, 2016)

FAN 95: “Fifty Shades of Grey” too Blue for Idaho? (Jan. 27, 2016)

February

FAN 96: Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture (Feb. 3, 2016)

FAN 97: Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern? (Feb. 10, 2016)

FAN 98: The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive? (Feb. 17, 2016)

FAN 99: Welcome to the Marketplace of Ideologies — Where Ideas go to Die (Feb. 24, 2016)

March

FAN 100: FIRE Spreads — Group to Launch Online First Amendment Library (March 9, 2016)

FAN 101: Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co. (March 16, 2016)

FAN 102: Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker (March 23, 2016)

April

FAN 103: Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era (April 6, 2016)

FAN 104: Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center (April 13, 2016)

FAN 105:  Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech” (April 20, 2016)

FAN 106:  The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive (April 27, 2016)

May 

FAN 107:  FTC’s Power to curb misleading ads remains intact (May 4, 2016)

FAN 108: Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play (May 11, 2016)

FAN 109: Abrams Institute to Host Event on Commercial Speech (May 18, 2016)

FAN 110:  Steve Shapiro to Step Down as ACLU’s Legal Director (May 25, 2016)

June

FAN 111: Flying Dog Brewery Launches First Amendment Society (June 1, 2016)

FAN 112:  “Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet” (June 8, 2016)

FAN 113: “Abrams Court” Breaks with Tradition & Allows Cameras in Courtroom (June 22, 2016)

FAN 114: 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied (June 29, 2016)

July

FAN 115: Profile: Jameel Jaffer to Head New Knight First Amendment Institute (July 6, 2016)

FAN 116: Farber on Scalia & the Abortion Protest Cases (July 13, 2016)

FAN 117: Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law (July 20, 2016)

FAN 118: University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents (July 27, 2016)

August

FAN 119: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 17, 2016)

FAN 120: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 24, 2016)

FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU (Aug. 31, 2106)

September 

FAN 122: Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine (Sept. 7, 2016)

FAN 123: When you think of free speech, think of “45” — New book by Stephen Solomon (Sept. 13, 2016)

FAN 124:  Ellen DeGeneres raises First Amendment defense in defamation case (Sept. 21, 2016)

FAN 125: Forthcoming book spotlights First Amendment freedom & LGBT equality (Sept. 28, 2016)

October

FAN 126: Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times” (Oct. 5, 2016)

FAN 127: Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist” (Oct. 12, 2016)

FAN 128:  Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond (Oct. 19, 2016)

FAN 129: A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press (Oct. 26, 2016)

November 

FAN 130: “Porn Panic” Prompts Pushback (Nov. 2, 2016)

FAN 131: Forthcoming: Chemerinsky & Gillman on the importance of free speech on college (Nov. 10, 2016)

FAN 132: FIRE Launches First Amendment Online Library (Nov. 16, 2016)

FAN 133: Slants trademark case might be decided on statutory grounds (Nov. 23, 2016)

December

FAN 134:  “Anti-Semitism Awareness Act” ignites First Amendment controversy  (Dec. 7, 2016)

FAN 135: “Protect the Flag Act” Introduced in Congress” (Dec. 14, 2016)

→ Year in Review: FAN Posts for 2015 ←

 FAN 91: The Year in Review, including “the best of” (Dec. 30, 2015)

2

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