Tagged: First Amendment

0

FAN 152 (First Amendment News) Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book

Breaking News from the New York Times

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

_______________________

Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

 Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)

Related

Gilbert Roe died in 1929.

* * * *

Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free SpeechHere is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

Cert. Petition filed in Right to Assembly Protest Case Read More

4

FAN 136.1 (First Amendment News) Nat Hentoff, First Amendment Champion, Dies

Sad to report the death of my father tonight at the age of 91. He died surrounded by family listening to Billie Holiday. — Nick Hentoff

Seattle. He was a friend, an inspiration, and someone who led the kind of life that so many long to live but are afraid to do so. When Ira Glasser shared the news, I left a party and went back to a quiet place to listen to Miles Davis’ Blue in Green . . . and then I turned off the lights and just sat and thought of Nat.

Perhaps no person better embodied the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff (1925-2017) (AP obit here)

Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There was also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it made him. Some liberals loved him, some conservatives admired him, and some libertarians applauded him — but very few came along for the full Hentoff monty. And that’s the way he liked it! If you have an open mind and a tolerant side, you had to love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the 2013 documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

 Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

Nat Hentoff on Bill Buckley's Firing Line

   Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat’s books on free speech and related topics include the following:

See also Ronald Collins & David Skover, The Trials of Lenny Bruce (2002) (cd narrated by Nat Hentoff)

Video clips

       Hentoff & Allen Ginsberg on Charlie Rose (1995)

 Nat Hentoff on Free Speech,Jazs, & FIRE (this is precious!)

 See and hear the man himself on this Brian Lamb, C-SPAN interview with Nat (go here).

 And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

 One more — this, too, is precious: The young Nat debating the young Bill Buckley on Firing Line.

1

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

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

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

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

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

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

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

War on porn over?

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

Larry Walters

Larry Walters

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

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

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

Porn & anti-social behavior

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

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

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

Next, enter Larry Walters, the First Amendment lawyer.

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

Professor Jeannie Suk

Professor Jeannie Suk

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

* * * *

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

* * * *

→ Related items:

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

0

FAN 128.1 (First Amendment News) Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits

It is about time that the use of lawsuit threats by a bully, like Trump, should be met, and met strongly. — Laurence Tribe 

Theodore Boutrous, Jr.

Theodore Boutrous, Jr.

It all began with Theodore Boutrous, Jr. According to Law Newz, “on October 13, Boutrous sent out a tweet promising to a pro bono defense to the Palm Beach Post newspaper after it published a story from one of Trump’s alleged accusers.” And then on October 22, he tweeted: “I repeat: I will represent pro bono anyone  sues for exercising their free speech rights. Many other lawyers have offered to join me.”

Shortly afterwards one of those who offered to form pro bono phalanx to defend against Trump’s threatened defamation lawsuits was  Harvard Professor Laurence Tribe.

Professor Laurence Tribe

Professor Laurence Tribe

Last evening Professor Tribe appeared on The Last Word with Lawrence O’Donnell (MSNBC). Tribe was on the program to talk about recent threats by Donald Trump to sue his sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

Here are some transcribed excerpts from Professor Tribe’s comments in response to that threat:

Offer of pro bono assistance

“Ted Boutrous and Ben Wittes, and many other leading lawyers, have [offered to represent pro bono those alleging sexual misconduct against Donald Trump]. And I did it because it is about time that the use of lawsuit threats by a bully, like Trump, should be met – and met strongly – because a lot of people, a lot of women, might be deterred by his threats even though he often doesn’t carry them out. They might be afraid to come forward; it’s not only them, it’s all kinds of groups. A group that I am also ready to defend pro bono, although it may sound a little bit strange, is the American Bar Association, which was frightened into suppressing its own report by a free-speech watchdog group, which concluded that Trump used the threats of libel suits to bully people into submission. And they ended up censoring themselves because they were afraid of being sued.” [See Adam Liptak, Fearing Trump, Bar Association Stifles Report Calling Him a ‘Libel Bully’, New York Times, Oct. 24, 2016; see also Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center, Oct. 21, 2016]

“It’s really about time that people who know what they are talking about in the law tell this guy what an idiot he is and how unfair it is for him to use his power. . . . He says that he can just sue the hell out of anybody. [But] he’s gonna learn better than that when he tries. . . . “

“[T]he women who are afraid to come forward should know that lawyers like me are going to be willing to defend them and the journalists who reported their stories without charge. . . .”

Possible defamation suits against Trump

“All of the people [Trump] threatens to sue, without any real ground and in the face of the First Amendment, have strong grounds to sue him for deliberately and falsely labeling them as liars and as people who simply want – I think he called it — their ten minutes of fame . . . .”

Course of action if Trump wins

“Justice Brennan in a case called Garrison, pointed out that the way the Nazis, early in their rise to power, silenced their enemies and their opposition was to threating to use defamation lawsuits against them. But I do want to want to add, quite apart from these lawsuits, if Trump loses (as I hope he will) we won’t have to take the next step. But if he should happen to win (heaven forbid!) . . . then lawyers around the country, who are joining me in this effort, are going to do all we can, pro bono, to prevent him from abusing executive power by violating the First Amendment and much else in the Constitution. Because if he wins, he’s likely to take a Congress with him; he’s not likely to have the usual checks-and-balances. So, the legal profession has a challenge that I hope it can meet. I think that people who are lawyers . . . , in the best sense of the word, need to step up and call this tyrant for what he is.”

Coming: Tomorrow’s FAN post is titled: “A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press”

0

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.

1

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

1

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

0

Tribute to Lenny Bruce on the Occasion of the 50th Anniversary of His Death

This series is dedicated to the memory of John Sisko (1958-2016) —  artist, writer, teacher, gallerist, friend, and free-spirit. Sadly, his artistic tribute to Tom Paine never came to pass. Still, his last words revealed the measure of the man, his revolutionary grain: “I have lived my life creatively and uniquely and on my own terms.” Yes you did, John. 

____________________

IMG_4829

(credit: NYT)

To commemorate the 50th Anniversary of the death of America’s most uninhibited comedian, I have prepared five posts for the occasion. My interest in Bruce traces back to my book with David Skover, The Trials of Lenny Bruce (2002 & 2012 — 10th anniversary issue / NPR interview), followed by our successful petition to Governor George Patakai to posthumously pardon the comedian.  

Recent & Related 

bbc-blocks-dark

 “Lenny Bruce – In His Own, Unheard, Words,” BBC, July 30, 2016 (“Fifty years since Lenny Bruce died, Mark Steel explores his legacy in the 21st century, drawing on personal tape recordings from a newly established Lenny Bruce archive at Brandeis University, as well as classic clips from some of his ground-breaking comedy and social commentary routines. With contributions from Lenny’s daughter, Kitty Bruce, and from those who knew and wrote about him, including author Laurence Schiller.”)

Unknown

Philip Eil, “50 Years After His Death, Lenny Bruce’s Spirit Lives,” The Forward, August 1, 2016

Unknown

Kelly Carlin, Rain Pryor, and Kitty Bruce Speak Out About Their Fathers and the Fight for Free Speech in Comedy” (FIRE: Video/Podcast) (really a remarkable video)

Kelly Carlin, Rain Pryor, & Kitty Bruce

        Kelly Carlin, Rain Pryor, & Kitty Bruce

Can We Take a Joke? (FIRE documentary featuring Lenny Bruce)

Paul Krassner, Remembering Lenny Bruce, 50 years after his death, Los Angeles Times, July 28, 2016

 Alex Wohl, Standup Philosopher, Brandeis Magazine, Summer (2016)

(Credit: Vice Squad Mag., April, 1963)

(Credit: Vice Squad Mag., April, 1963)

0

We kill comedians don’t we? — The Lenny Bruce Story

We drove him into poverty and bankruptcy and then murdered him. We all knew what we were doing. We used the law to kill him. — Vincent Cuccia (one of Bruce’s NY prosecutors)

He died before his death. It was apparent that Wednesday (February 9) in 1966 when Lenny Bruce spoke at the Associated Students Speakers’ Program at the University of California, Los Angeles (UCLA). He rambled; he misspoke; he struggled; and, yes, he bombed. Pathetic. That’s one word. Sad. That’s another. Predictable. Yet another word.

In less than six months he would be officially dead. Who could not see it coming?

Lenny Bruce, left (credit: Getty Images)

Lenny Bruce, left (credit: Getty Images)

Bruce was broke, bankrupt, out of work, out of luck, friendless, divorced, depressed, and junked up. It was so bad that shortly before he died he tried to hit up his parole officer for $10. Worse still, he was a criminal—a year or so earlier he had been convicted and sentenced in New York for an “obscene” bit he did at the Cafe au Go Go.

They hunted him in San Francisco, Los Angeles, Chicago, and New York. It took its toll: the busts, the prosecutions, the trials, the appeals, and the alienation. And all this for his comedy. He was so taken with his legal plight that he largely abandoned comedy. Besides, by the time he spoke at UCLA no club would hire him. He was a sick and sad comedian, a man waiting to be fitted for a hangman’s noose.

The days of his outrageous humor—“obscene,” “blasphemous,” “sick”—were over. His great comic bits that once pierced the boils of hypocrisy were past tense. He was obsessed with the law; he had a childlike faith in it; and he long thought it would save him. By the time he found himself at UCLA surrounded by students—by that pinpoint in time—he came to a terrifying realization: it was over. Hence, when he spoke of the law, it was like listening to a man with an uncontrollable mental tic—a flick of the head, a fast-and-fleeting flash of an idea, and all capped off with a lunatic’s chuckle.

That day at UCLA much of the laughter was feigned. Or it was an uneasy laughter, an awkward gesture of sympathy. How could it be otherwise? The great Lenny Bruce—the TV and record star, the club star, the well-paid star, and the star of the hip generation—had been reduced to rubble. No wonder he babbled as he tried to speak of free-speech freedom; no surprise that he blathered on as he attempted to discuss the importance of courts and the rule of law; and no wonder it all went south when he sought to make sense of his life at the intersection of despair and destitution.

My point? What people saw that day at UCLA was a Lenny Bruce freak show. But the show, as they say, had to go on . . . and go on it did.

Death changed everything; it would bring Lenny back to life with everlasting applause. It was ironic: death was his best publicity agent. But why?

Because . . .

(Credit: UPI)

(Credit: UPI)

Dead Lenny was no longer a threat to anyone.

Dead Lenny could no longer offend the sensibilities of the righteous.

Dead Lenny was compliant.

That, at least, was the censorial hope. But there was more:

Dead, Lenny the man became Lenny the myth.

Dead, Lenny the uninhibited comedian became a cultural hero.

Dead, Lenny the unruly social commentator became packaged product, and

Dead, Lenny the once bankrupt comic became a cash cow for others

* * * *

It’s true: We feared Lenny alive / yet we love Lenny the dead hero.

Odd the way we turn the First Amendment into a death wish. It is to take a guarantee meant for the living and cram it into a coffin. The result: The censor’s past will likely repeat itself when the next Lenny Bruce comes onto a new life stage.

It is oft repeated: Lenny Bruce is the patron saint of comedians. There is truth there. After all, Lenny Bruce was the last comedian prosecuted and tried for word crimes in a comedy club. He paid the dues, and comedians were the everlasting beneficiaries. Hail Lenny; hail St. Lenny! Okay. But think of it: we canonize a (Jewish) comedian?

“I don’t want to end up like [Lenny Bruce], but I want to be like him.”—Margaret Cho

Which brings me to this question: Why should it be so? Why must we demand dead Lennys? Why not alive Lennys?

Why not celebrate the First Amendment by protecting speech that offends us, repels us, and even unsettles us? Is that asking too much? Perhaps. But that is what the First Amendment asks of us. No joke!

0

FAN 117.2 (First Amendment News) David Cole Named New National Legal Director for ACLU

I am deeply honored to take on the leadership of the ACLU’s national legal program. — David Cole

Tony Mauro over at the National Law Journal just broke the story:

ACLU Names Georgetown Law Prof David Cole as New Legal Director

Here are a few excerpts from Tony’s story:

Prof. David Cole

Prof. David Cole

“The American Civil Liberties Union announced Thursday that Georgetown University Law Center professor David Cole will be the organization’s next national legal director.”

“Cole, a leading liberal scholar and litigator, will replace Steve Shapirowho is leaving after 25 years in the job. Cole will conduct the ACLU’s Supreme Court practice and oversee the work of the organization’s nearly 300 lawyers, according to executive director Anthony Romero.”

“However, Cole’s new role will pose recusal issues for his wife, Judge Nina Pillard of the U.S. Court of Appeals for the D.C. Circuit, who has also been mentioned as a possible future Supreme Court nominee. The recusals may deprive the ACLU of a favorable vote in some instances. . . .”

“In addition to authoring several books and writing commentary for The Nation and The New York Review of Books, Cole has argued four cases before the high court, most recently the First Amendment case Holder v. Humanitarian Law Project in 2010.”

→ I will be writing more on this in my FAN blog for this coming Wednesday.