Tagged: First Amendment law

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FAN 133 (First Amendment News) Slants trademark case might be decided on statutory grounds

The Slants band

The Slants band

The briefs are still being filed in Lee v. Tamthe disparagement trademark case. While the briefs for the Petitioner are in

those for the Respondent have yet to be submitted.

John C. Connell

John C. Connell

No doubt, First Amendment arguments will demand a lion’s share of attention in those briefs. But will the Court ultimately go that far in deciding the case, or might it take refuge in the doctrine of constitutional avoidance and decide the controversial case on statutory grounds?

→ Enter John C. Connell, counsel of record for the Respondent (with him on the brief: Stuart Banner, Eugene Volokh, Ronald Coleman & Joel MacMull). In his brief, Mr. Connell devotes considerable attention to the following argument: “The Lanham Act’s disparagement clause does not bar the registration of respondent’s trademark.” Here are some excerpts from the Respondent’s brief related to this issue:

  1. Statutory Claim Preserved: “Under section 2(a) of the Lanham Act, does THE SLANTS ‘disparage  . . . persons, living or dead’? At every stage of this litigation, Simon Tam has argued that section 2(a) does not bar the registration of his trademark. He is thus entitled to defend the judgment below on this ground.”
  2. Pressing Need to Decided Statutory Issue: “Section 2(a)’s disparagement clause has existed for 70 years, but the Court has never interpreted it. The PTO has been left to develop its own disparagement jurisprudence, which has wandered ever farther from the statute’s text and from any reasonable understanding of what Congress intended. This case provides an opportunity for the Court to guide the PTO back to the text of the statute.
  3. No Statutory Disparagement: “Simon Tam and his band members are not disparaging Asian- Americans. They are doing precisely the opposite; they are appropriating a slur and using it as a badge of pride. Simon Tam is not a bigot; he is fighting big- otry with the time-honored technique of seizing the bigots’ own language. “Slant” can certainly be used in a disparaging way, but Tam is not using it that way. Even the most cursory awareness of the Slants’ music and the way it is packaged makes that clear.”
  4. PTO Misapplied Statutory Test: “Rather than considering the full context surrounding Simon Tam’s use of THE SLANTS, the PTO simply looked up the word ‘slant in several dictionaries. Rather than asking whether THE SLANTS disparages Asian-Americans generally, the PTO quoted the views of a blogger and a few self-styled spokespeople for Asian-Americans, to conclude that ‘a substantial composite of the referenced group find the term objectionable.’ Had the PTO followed the statute . . . the result would have been different.”
  5. Statute does not apply to “Collective Entities”: “The PTO also erred in construing section 2(a)’s bar on the registration of marks that may disparage ‘persons, living or dead’ to include marks that disparage non-juristic collective entities like racial and ethnic groups. In fact, the quoted phrase includes only natural and juristic persons. . . . Section 2(a)’s disparagement clause bars the registration of marks—such as JOHN SMITH IS EVIL—that disparage natural persons. It also bars the registration of marks—such as MICROSOFT IS EVIL—that disparage juristic persons. But the disparagement clause explicitly does not bar the registration of marks that disparage collective entities that are not juristic persons.”
  6. Original Purpose of Disparagement Clause: “The purpose of the disparagement clause was not to protect the civil rights of racial and ethnic minorities. Rather, the purpose appears to have been to bring American trademark law into conformity with the language of a recent treaty. In 1931, the United States ratified the Inter-American Convention for Trade Mark and Commercial Protection. 46 Stat. 2907 (1931). Article 3.4 of the Convention provided for the denial of registration to trademarks ‘[w]hich tend to expose persons, institutions, beliefs, national symbols or those of associations of public interest, to ridicule or contempt.’ One of the primary purposes of the Lanham Act was, as the House and Senate re- ports both explained, ‘[t]o carry out by statute our international commitments.’ Indeed, the full title of the Lanham Act was ‘An Act to provide for the registration and protection of trade-marks used in commerce, to carry out the provisions of certain international conventions, and for other purposes.’ . . .  Congress would not turn its attention to protect- ing the rights of racial and ethnic minorities for many years to come. When it did, beginning with the Civil Rights Act of 1957, Congress would refer to race and ethnicity explicitly, unlike in the Lanham Act. Section 2(a) thus protects natural and juristic persons against disparagement; it does not protect racial and ethnic groups.”

Such arguments may carry the day and thus could prevent the Court from reaching the First Amendment issues. Let’s see how oral arguments play out.

* * * *

Here are the Briefs in support of neither party:

See also Erica Goldberg, Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series): Part One: The Weighty Legal QuestionsIn a Crowded Theater, Oct. 24, 2016

True Threats to Press Freedom?

 Emily Bazelon, Billionaires vs. the Press in the Era of Trump, New York Times, Nov. 22, 2016 (“Once installed in the White House, Trump will have a wider array of tools at his disposal, and his record suggests that, more than his predecessors, he will try to use the press — and also control and subdue it.”)

Brent Griffiths, Trump to reporters: ‘You’ll be happy’ with my views on the First Amendment, Politico, Nov. 22, 2016 (“President-elect Donald Trump vowed that reporters would be ‘happy’ with his stewardship of the First Amendment under his presidency, despite past promises to make it easier to sue them. ‘I think you’ll be happy, I think you’ll be happy,’ Trump told New York Times reporters, editors and columnists gathered at the newspaper’s Times Square headquarters on Tuesday.”)

unknown Joe Concha, Breitbart News planning lawsuit against ‘major media company,’ The Hill, Nov. 15, 2016 (“Breitbart News Network, a pro-America, conservative website, is preparing a multi-million dollar lawsuit against a major media company for its baseless and defamatory claim that Breitbart News is a ‘white nationalist website,’” the statement reads.”Breitbart News cannot allow such vicious racial lies to go unchallenged, especially by cynical, politically-motivated competitors seeking to diminish its 42 million monthly readers and its number one in the world political Facebook page. Breitbart News rejects racism in all its varied and ugly forms. Always has, always will,” the statement continues.)

Peter Scheer, Can the First Amendment survive President Donald Trump?, Cal Coastal News, November 21, 2016 (“To get back at the New York Times, the Trump administration can go after its biggest shareholder, Mexican telecom magnate Carlos Slim. To get back at CNN, the Trump administration can have antitrust regulators in the Justice Department and FTC put the brakes on the proposed merger of Time-Warner (CNN’s owner) and AT&T.  And the same pain can be visited upon scores of other US firms, not limited to media, which, having criticized Trump’s policies, find themselves in the government’s crosshairs.”)

Susan Seager, Melania Trump’s ‘Revenge Lawyer’ Apparently Doesn’t Understand First Amendment, Law Newz, Nov. 19, 2016 (“Charles Harder, the Beverly Hills lawyer who destroyed Gawker as an act of revenge bankrolled by Silicon Valley mogul Peter Thiel and is now the attack-dog-lawyer for Melania Trump, wants to take down mainstream reporters and a 52-year-old Supreme Court decision. Problem is, like many tough-talking celeb lawyers, Harder misunderstands the law.”)

Ashly Cullins, Trump’s First-Amendment Nemesis Explains How He’ll Defend Any Defamation Lawsuits (Q&A), The Hollywood Reporter, Nov. 17, 2016  (“After then-candidate, now President-elect Donald Trump threatened to sue The New York Times and his sexual assault accusers for defamation in October, attorney Ted Boutrous turned to Twitter to tell the paper, and anyone else finding themselves in a similar situation, that he’d take on any free speech case brought by Trump, pro-bono. . .”

Question: What are some of the weapons that might be used against the press?

Boutrous’ Reply: “Subpoenas to reporters, going after whistleblowers, having an administration that’s even worse at responding to Freedom of Information Act requests, denying press credentials to news organizations, seeking prior restraints to stop publication of newsworthy information, and continuing to attack journalism and undermine its legitimacy from the bully pulpit of the presidency. We need vigorous, aggressive journalism as a democracy. The framers of the Constitution knew that people need to have accurate, factual information. If you have the president telling people that the best journalism in the world is wrong and evil, that is very harmful.”

Steve Benen, First Amendment faces unusual threats following Trump’s win, MSNBC, Nov. 14, 2016 (” One of the president-elect’s top aides raised the prospect of legal action against a critical senator; the president-elect himself is dishonestly attacking one of the nation’s top news outlets; Trump’s team is already taking new steps to limit press access; and the incoming Republican administration has taken aim at protesters voicing dissent in the wake of last week’s elections. If this is what we’re seeing in the first week – two months before Trump officially takes power – the First Amendment and its proponents are in for a very rough ride.”)

Mirren Gidda & Zach Schonfeld, Donald Trump’s Threat to Press Freedom: Why It Matters, Newsweek, Nov 12, 2016 (“Less than a month before the U.S. presidential election, the Committee to Protect Journalists issued an unprecedented statement denouncing the then-Republican nominee. ‘[Donald] Trump has insulted and vilified the press and has made his opposition to the media a centerpiece of his campaign,’ said the committee, a New York-based organization that promotes press freedom. ‘A Trump presidency would represent a threat to press freedom in the United States.’ With little more than two months before Trump takes the oath of office, the threat to the media—and the public’s right to know—is reality.”)

John Daniel Davidson, Mainstream Journalists Don’t Care About Free Speech Until Donald Trump Attacks It, The Federalist, Nov. 15, 2016 (“Trump’s cavalier attitude toward free speech isn’t unique. In fact, it’s a fundamental feature of the political Left. For all its wailing about free speech in the wake of Trump’s election . . . , the media spent eight years enabling and at times encouraging the Obama administration’s denigration of the First Amendment.”)

Hanging noose in yard unprotected by First Amendment Read More

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FAN 132 (First Amendment News) FIRE Launches First Amendment Online Library

This past Monday some 100 people came to the Washington, D.C. scenic offices of Jones Day where the Foundation for Individual Rights (FIRE) hosted an event to launch the First Amendment Library, the only such online library in the nation.

This from the press release: “FIRE’s First Amendment Library is a free, online database of First Amendment-related materials, including illustrated timelines, educational materials, unique articles, and more than 900 Supreme Court cases concerning the First Amendment. The content available in the library serves as the foundation for an an easy-to-use, ever-expanding resource for students, law clerks, lawmakers, judges, lawyers, journalists, and anyone else who wants to learn about the First Amendment.”

“The First Amendment Library is a one-of-a-kind knowledge hub for all things relating to our Constitution’s first freedoms,” said FIRE Executive Director Robert Shibley. “FIRE is excited to share this resource with the world, and we hope that it will generate more interest in the First Amendment and its important history.”

Greg Lukianoff, Ron Collins & Robert Shibley

Greg Lukianoff, Ron Collins & Robert Shibley

The program was introduced by Greg Lukianoff (FIRE’s president & CEO), Robert Corn-Revere (First Amendment Lawyer), and Robert Shibley (FIRE’s executive director).

Here are a few samples of some of the contents of the online library:

The online library will be updated regularly and expanded greatly in the months and years ahead. For example, in the coming weeks new content will be added concerning everything from the 1734 trial of John Peter Zenger to the list of First Amendment free expression cases decided by the Roberts Courts to First Amendment briefs filed in the Supreme Court by noted appellate lawyers.     

Board of Advisors

  • Floyd Abrams
  • Erwin Chemerinsky
  • Robert Corn-Revere
  • Lucy Dalglish
  • Charles Haynes
  • Lee Levine
  • Michael McConnell
  • Paul McMasters
  • Martin Redish
  • Catherine Ross
  • Nadine Strossen
  • Laurence Tribe
  • Melvin Urofsky
  • Eugene Volokh
  • James Weinstein

Some of those attending the event: Jim Caruso, Susan Cohen, Anthony Dick, Lee Levine, Ronnie London, Tony Mauro, Robert M. O’Neil, Sigrid Fry-Revere, Catherine Ross, Ilya Shapiro, Mel Urofsky, and Lisa Zycherman.

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Campus “grievance culture” tested in S.C. case 

The case is Abbott v. Pastideswhich is currently before the U.S. District Court for the District of South Carolina (Columbia Division). The current posture of the case concerns the Plaintiffs’ consolidated opposition to the Defendants’ motion for summary judgment and Plaintiffs’ cross-motion for partial summary judgment. The information set out below is from the Plaintiffs’ memorandum in support of their cross-motion.

University of South Carolina

  University of South Carolina

Facts: Here is how counsel for the petitioners summarized the facts: Plaintiffs in this case wanted to start a dialogue with their fellow students about the growing number of free speech controversies on American college campuses but learned the sad lesson that you can’t even talk about free speech these days without getting into trouble. They held a Free Speech Event at the University of South Carolina where they described recent cases in which freedom of expression had become a controversial issue. The event went well, but when a few students complained that they were offended and felt “triggered,” the University promptly began an investigation of the speakers, even though their event had been fully explained to USC officials and approved in advance.

University of South Carolina’s Student Non-Discrimination & Non-Harassment Policy (see here)

“Grievance culture” — “This case . . . illustrates how campus bureaucracies can favor grievance culture over the free exchange of ideas, and why structuring rules to nurture and encourage complaints about speech contributes to a mistaken belief by some that there is an American right not to be offended. Such misconceptions have been fostered by constitutionally unsound directives from the Office of Civil Rights of the U.S. Department of Education (“OCR”) and the U.S. Department of Justice (“DOJ”) that purport to establish a blueprint for regulating free expression on college campuses. USC unfortunately got entangled in this mindset and adopted policies to regulate student speech based on broad and nebulous terms using procedures that favor those who complain over the rights of speakers.”

Plaintiffs’ First Amendment Arguments

I. Defendants’ Investigation of the Free Speech Event Violated Plaintiffs’ First Amendment Rights in Ways that Preclude Qualified Immunity & Compel Judgment for Plaintiffs’

A.  Plaintiffs’ First Amendment Rights Are Clearly Establishes

B.  Forcing Plaintiffs to Justify Their Exercise of Free Speech and Threatening Sanctions Violated Their First  Amendment Rights

        1.  Defendants Misstate Controlling First Amendment Principles

        2.  Defendants’ Investigation Burdened Plaintiffs’ First Amendment Rights

II. USC’s Non-Discrimination & Non-Harassment Policy is Facially Invalid Because it is Vague, Overly Broad, & Fails to Incorporate Sufficient Safeguards for Free Expression

A. USC’s Non-Discrimination and Non-Harassment Policy (STAF 6.24) is Vague and Overly Broad

1. STAF 6.24 Restricts Speech Using Amorphous and Undefined Terms

2. The “Limiting Clause” of STAF 6.24 Cannot Rehabilitate a Constitutionally Defective Policy

3. USC’s Policy Fails to Implement the Required Constitutional Standard

 B. USC’s Reliance on DOJ and OCR Guidance is No Defense, & Instead Illustrates the Constitutional Deficiencies of its Policy

C. The Court Should Grant Plaintiffs’ Motion for Summary Judgment

→ Counsel for Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman

Related Documents & Articles

Ross Abbott, Why I Sued the School, The Daily Gamecock, March 2, 2016

Complaint and Exhibits (additional documents from PacerMonitor here)

For a discussion of the case, see The Academy Uncensored: Abbott v. Pastides 

Read More

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FAN 131 (First Amendment News) Forthcoming: Chemerinsky & Gillman on the importance of free speech on college campuses

It is one of the topics of our times — free speech on college campuses. As noted below, each week there are numerous news stories about this or that form of censorship endorsed by campus administrators. Now, two experts in the field of law and education have entered the marketplace of ideas in which this controversy continues.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Enter Dean Erwin Chemerinsky and Chancellor Howard Gillman with their next book: Free Speech on Campus (Yale University Press, summer 2017). Here is a draft of an excerpt from the preface to that book:

“Students are rightly demanding, and colleges and universities are striving to provide, greater diversity and an environment conducive to learning for all students. Often, though, these efforts have led to calls to restrict, punish, or disrupt speech by students and faculty members that is seen as creating a hostile learning environment, especially for those who have traditionally suffered discrimination. Some of this anger has been focused on speech that almost anyone would consider offensive and hateful. But there have also been calls to suppress speech that is merely politically controversial or contrarian. There are demands that campuses deal with “microaggressions” and require faculty to provide ‘trigger warnings’ before covering material that some students might find upsetting. Students have demanded—and received—formal investigations of possible violations of federal law after faculty members published scholarly articles in journals. The issues concerning speech on campus are complicated by the unprecedented ability for any person to quickly reach a large audience via social media. . . .”

Chancellor Howard Gillman

Chancellor Howard Gillman

“We fear that discussions over this issue, like so much else in society, are polarizing into two camps. One derides all efforts to protect students from the effects of offensive or disrespectful speech as ‘coddling’ and ‘political correctness.’ The other side believes that free speech rights are secondary to the need to protect the learning experience of students, especially minority students. “

“We write this book because we believe both sides are right and wrong. They are right in that both equality of educational opportunity and freedom of speech are essential for colleges and universities. But they are wrong in thinking that one of these objectives can be pursued to the exclusion of the other. Colleges and universities must both create inclusive learning environments for all students and protect freedom of speech. To achieve both of these goals, campuses may do many things, but they must not treat the expression of ideas as a threat to the learning environment. Freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education. . . . .”

There is more, much more, but I will stop there since the book is in the editing process. That said, the authors have kindly agreed to allow me to reprint a draft of the book’s table of contents:

Preface

Chapter 1:  The New Censorship

Chapter 2:  The Importance of Free Speech

Chapter 3:  The Special Role of Free Speech at Colleges and Universities

Chapter 4:  Hate Speech

Chapter 5:  Academic Freedom and Inclusive Learning Environments

Chapter 6:  What’s at Stake?

I will say more about this important book this coming summer when it is scheduled to be released.

Free Speech on College Campuses 

Heard on Campus: ‘The First Amendment and Diversity and Inclusion,’ Penn State News, Nov. 8, 2016 (video, participants: Robert D. Richards, Carla Pratt, Nancy J. LaMont, Stephen Ross, Victor Romero, & Maureen B. Cavanaugh

Susan Kruth, First Amendment Lawsuit Settled with Speech Code Revisions on 10 Arizona Campuses, FIRE, Nov. 8, 2016

Greg Piper, Satirical campus paper that was defunded because it offended people loses court battle, The College Fix, Nov. 8, 2016

Christina Hoff Sommers (credit: Aarushi Jain, Columbia Spectator)

Christina Hoff Sommers (see #10 below)
(credit: Aarushi Jain, Columbia Spectator)

  1. ASNE stands ready to defend First Amendment rights, strong democracy, iReach, Nov. 9, 2016
  2. Annalena Wolcke, A Brief Overview of “Freedom of Speech” on the University’s Campus, The Daily Princetonian, Nov. 9, 2016
  3. Sara Shepherd, National free speech group says KU is among schools with codes that ‘violate’ the First Amendment; University Senate free speech committee continues meeting, LJ World, Nov. 7, 2016
  4. Annika Cline, MCCCD Eliminates Free Speech Zones, Allowing Expression Everywhere On Campuses, KJZZ, Nov. 7, 2016
  5. Ray Stern, Free Speech Now Freer at Maricopa County Community College District, Phoenix Times, Nov. 7, 2016
  6. Van Nguyen, Conservative journalist Ben Shapiro criticizes campus censorship at YCT event, The Daily Texan, Nov. 4, 2016
  7. Cody Nelson, In campus free speech debate, nobody’s really winning, MPR News, Nov. 4, 2016
  8. D.C. McAllister, Free Speech Under Attack at Another College Campus, PJ Media, Nov. 3, 2016
  9. Pfeffer Merrill, Pro: Colleges must guard free speech, Evansville Couruer & Press, Nov. 3, 2016
  10. Cara Maines, Controversial feminist critic discusses trigger warnings, free speech amidst opposition on campus, Columbia Daily Spectator, Nov. 2, 2016
  11. A Public University Makes Students Choose Between Their First Amendment Rights & Graduation, Forbes, Nov. 2, 2016
  12. Lawrence Ross, Blackface on College Campuses Isn’t About Freedom of Speech; It’s About White Supremacy, The Root, Oct. 31, 2016
  13. Cliff Maloney, Jr., Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016

Ballot Selfies: Colorado & California — Different Results   Read More

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FAN 129 (First Amendment News) A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press

In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”

Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)

“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York TimesThe Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”

Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”

“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]

Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump) 

The threat of litigation by “well-funded plaintiffs” 

Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”

“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”

Countersuits: Suing Trump for Defamation? 

Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016

* * * *

In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.

___________________

Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

October 23, 2016: Donald Trumps threatens to sue 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)

“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”

Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”

Pro Bono Offers to Defend Against Defamation Suits Read More

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FAN 128 (First Amendment News) Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling

The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .”  –Catherine J. RossLessons in Censorship (2015) 

Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.

But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.

screen-shot-2016-10-17-at-9-59-16-pm

Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”

Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)

“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”

Ten States Expand Student Press Rights (statutory rights)

  1. North Dakota (public colleges & high schools)
  2. Colorado 
  3. Pennsylvania 
  4. Iowa
  5. Kansas
  6. Arkansas 
  7. California
  8. Oregon
  9. Maryland (public colleges & high schools)
  10. Illinois (public colleges & high schools)

“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte

Related 

  • Oregon (protection for public college students)
  • California (protection private college students)
  • New Jersey (pending legislation: public colleges & high schools)

 Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)

→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)

→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)

Is downloading hacked Clinton e-mails a crime? Read More

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FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

* *  * * 

Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

* * * * 

According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More

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FAN 127 (First Amendment News) Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”

The case is Bennie v. MunnA cert. petition was filed recently in the Supreme Court with Damien Schiff listed as counsel of record. Before proceeding to the First Amendment issue raised, consider the opening paragraph of the Eighth Circuit’s opinion in the case; Chief Judge William J. Riley wrote for the majority:

Damien Schiff, counsels for Petitioner

Damien Schiff, counsel of record for Petitioner

“Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators after they investigated him and his broker-dealer employer around the time a newspaper reported Bennie made unkind comments about the President of the United States. The district court found that even though the regulators targeted Bennie partly in retaliation for his constitutionally protected political speech, they did not do enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s claim failed. Because we cannot say that finding was clearly wrong, we affirm.”

The Chief Judge ended his opinion by declaring: “We are not of a definite and firm conviction that a mistake was committed by the district court such that the district court clearly erred by finding the state regulators’ actions against Bennie would not have quieted a person of ordinary firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504, we affirm.”

Circuit Judge Jane L. Kelly joined in the majority opinion and Circuit Judge Clarence Beam concurred in party and dissented in part.

 In his cert. petition on behalf of Robert Bennie, Jr., Mr. Schiff contends that the case raises the following question:

“Robert Bennie, a successful financial advisor, was one of the leaders of the Lincoln, Nebraska, Tea Party. Because Bennie called President Obama “a communist” in a prominent newspaper, state regulators pressured Bennie’s employer to impose heightened supervision, conduct unannounced audits, and levy other sanctions to provide them with ‘some comfort.’

“The Constitution prohibits government officials from retaliating against individuals for protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To prevail on a First Amendment retaliation claim, a plaintiff must show, among other things, that a person of ‘ordinary firmness’ would have declined to speak in light of the government’s adverse action. The courts of appeals have split on whether a trial court’s determination on this issue is subject to clear error or de novo review. The question presented, which the court below viewed as ‘likely [] dispositive,’ is: In light of the First Amendment’s strong speech protections, are “ordinary firmness” decisions reviewed on appeal solely for clear error, as the Third, Sixth, and Eighth Circuits hold, or are they reviewed de novo, as the First, Ninth, Tenth, Eleventh, and D.C. Circuits hold?”

 Mr. Schiff argued that review should be granted for the following reasons:

I. “The decision below deepens a conflict among the Court of Appeals

           A. Like the Eighth Circuit, the Third Circuit and the Sixth Circuit Review a Trial Court’s “Ordinary Firmness” Determination for Clear Error

           B. In Contrast, the First, Ninth,Tenth, Eleventh, and D.C. Circuits, Review a Trial Court’s ‘Ordinary Firmness’ Finding DeNovo

II.  Certiorari should be granted to bring clarity to an important and reoccurring federal question that is clearly presented in this case.”

In a blog post on the Volokh Conspiracy, here is how Professor Eugene Volokh viewed the matter:

Prof. Eugene Volokh

Professor Eugene Volokh

“I think that, when it comes to decisions about what would “chill an ordinary person’s speech,” appellate courts should not defer to trial court findings. This sort of question isn’t a pure question of historical fact, as to which such deference is usually proper; rather, it’s a question of application of law to fact, which courts should review de novo, especially when First Amendment issues are at stake. There was some Eighth Circuit precedent suggesting that courts should indeed defer on such questions, which is why I think the Eighth Circuit should have reheard the matter en banc; I quote the amicus brief below.”

“But for now, whether or not Bennie should have won his case, I think that the Nebraska regulators’ actions were quite wrong, as the Eighth Circuit panel pointed out; and I thought they were worth airing.”

Headline: “Federal Court Blocks Louisiana’s Online Age-Verification Law for Violating First Amendment”

According to an ACLU press release, a “federal judge has signed an order permanently preventing Louisiana from enforcing a 2015 state law that required websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.”

largerlogopictures_0“[Chief] Judge Brian A. Jackson had previously granted a preliminary injunction in the case, Garden District Book Shop v. Stewart. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.”

“The plaintiffs in the case are two independent booksellers, Garden District Book ShopOctavia Books, Future Crawfish Paper (publisher of Anti-Gravity magazine), the American Booksellers Association and Comic Book Legal Defense Fund. The lawsuit was brought by the Media Coalition and the American Civil Liberties Union.

“The law, enacted as H.B. 153, required that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tried to access the material, would have been a crime subject to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything”

screen-shot-2016-10-12-at-12-19-01-am

“To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.”

“The federal district court found in its preliminary injunction ruling that ‘[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.’ . . .”

Garden District Book Shop v. Caldwell (Oct. 7, 2016, U.S. Dist. Ct., Middle Hist., La.) (order of final decree & judgement)

→ Complaint for Declaratory & Injunctive Relief

Attorneys for Plaintiffs: Michael A. Bamberger, Richard M. Zuckerman, Esha Bhandari, Lee Rowland, Stephen A. Dixon & Candice C. Sirmon

[ht: Media Coalition]

Headline: “Environmentalists and Corporations Struggle Over Boundaries of Free Speech”

Writing in the Epoch Times, Tara Maclsaac, reports that “Activists and bloggers expressing concerns about the environmental practices of some companies have been hit with multi-million-dollar defamation suits.For example, four residents in Uniontown, Alabama, are being sued for comments they made on Facebook about a local landfill. The company that operates the landfill is claiming $30 million in damages to its business.”

“The highest court in Massachusetts heard arguments in a similar case on Oct. 7. Karen Savage and Cherri Foytlin wrote a blog post in 2013 alleging that scientific consulting company ChemRisk had oil industry ties. They had thus called into question a ChemRisk’s study that declared cleanup workers at the Deepwater Horizon oil spill site were not exposed to harmful airborne chemicals.”

Just think what a massive muzzle we’d all live with if we all thought we’d be sued at any moment if our opinions might be slightly inaccurate online.Lee Rowland

“In both cases—and hundreds of others popping up around the country every year—the defendants say the lawsuits were just meant to scare them into retracting their statements and discourage others from speaking out. . . .”

“David Green, president of Green Group Holdings, the company that owns the Uniontown landfill in question, [said]: ‘All local residents have the right to oppose us and to exercise their free speech right to protest if they want. What they don’t have is a right to intentionally make false and defamatory statements of fact that damage our reputation and our ability to do business—which is exactly what they have done.’ . . .”

Patent Law & the First Amendment — Judge Mayer’s Concurrence

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

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

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

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

 ________________________

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

Professor Stone delivering the Aims Address

Professor Stone delivering the Aims Address

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

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

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

[A True Story about Rebels, circa 1918]

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

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

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

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

The defendants in Abrams v. US

The defendants in Abrams v. United States

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

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

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

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

Justice Holmes

Justice Holmes

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

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

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

Professor Harry Kalven (1914-1974)

Professor Harry Kalven (1914-1974)

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

[The Aims of Education]

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

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

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

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

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

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

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

Dean William Rainey Harper (1856 – 1906)

President William Rainey Harper (1856 – 1906)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal & State Laws

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

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

Marc Kasowitz

Marc Kasowitz

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

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

Related items

10 First Amendment Experts Respond

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The authors of the New York Times story were:

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

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

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

Professor Carlos Ball

Professor Carlos Ball

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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