Tagged: First Amendment law

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FAN 157.1 (First Amendment News) Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never canSimon Tam

The Slants (credit: Anthony Pidgeon/Redferns, via Associated Press)

A major First Amendment victoryNational ACLU

The far-reaching importance of this case cannot be overstatedNational Law Journal

The opinion: Matal v. Tam (June 19, 2017) (Oral Argument Transcript)

Counsel for RespondentJohn C. Connell

Coursel for PetitionerMalcolm L. Stewart (Deputy Solicitor General)

Briefs Filed in CaseParties & Amici

Video Interview: Extended Interview: The Slants’ Simon Tam (KOIN 6, June 19, 2017)

SCOTUSblog Symposium 

  1. The cacophony of trademarks is not government speech
  2.  Increasing First Amendment scrutiny of trademark law after Matal  v. Tam
  3.  Free speech comes to trademark law
  4. The First Amendment silences trademark
  5.  The Constitution prohibits government’s “happy-talk” requirement for trademark registration

FIRE: So to Speak Podcast 

Cato Podcast: The Michael Berry Show

Rolling Stone Magazine

Balkinization

Constitutional Law Prof Blog

Volokh Conspiracy

Bloomberg View

The Federalist

Forbes

Slate

In A Crowded Theater

This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.Simon Tam

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FAN 156 (First Amendment News) Special Post: The Espionage Act at the 100 Year Mark: Commentaries by Bambauer, Chemerinsky, Stone & Vladeck

There are citizens of the United States . . . born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. . . . 

I urge you to enact . . . laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. — Woodrow WilsonState of the Union Address, December 7, 1915

[T]he newspaper or individual who criticizes or points out defects in policies . . . with the honest purpose of promoting remedial action and warning against danger is not a public enemy. — Editorial, New York Times,  April 13, 1917

Today marks the 100th anniversary of the Espionage Act of 1917 (18 U.S. Code Chapter 37). In light of that, I have collected some background materials about the Act followed by several original comentaries on it, which follow the introductory materials below.

Origins

  • Assistant Attorney General Charles Warren drafts a bill “for suppressing or punishing disloyal and hostile acts and utterances.”
  • Bill introduced in the House as H.R. 291
  • Bill passes in the House on May 4, 1917 (261–109)
  • Bill passes the Senate on May 14, 1917 (80–8)
  • President Woodrow Wilson signs bill into law on June 15, 1917.

August 1917 cover of Masses Magazine

First Amendment Online Library Timeline of Espionage Act & Related Acts

 The Masses cases:

  • Masses Publishing Co. v. Patten, 244 F. 535 (S.Dist.N.Y., 1917) (per Hand, J.)
  • ruling re stay of appealed order, 245 F. 102 (per Hough, J., 1917), and
  • Circuit Court ruling reversing District Court,  246 F. 24 (2nd Cir., 1917) (per Rogers, J. for the majority  with Ward, J. concurring)

FAN 148, Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Controversial Provisions of the Act: “The Espionage Act put into law a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment. The law also presented the penalty of levying fines of up to $10,000 for those convicted. The law also gave additional powers to the post office. Specifically, the law allowed the Postmaster General to confiscate any mail that might be deemed seditious or treasonable.” (source: This Day in History)

Domestic Issues of Concern: “There were quite a number of concerns the Wilson administration had about certain groups that were in opposition to the war. Public criticism of the war was definitely a major concern of the government. Since a significant number of troops would be needed to carry out the war effort, a draft was imposed. Among the concerns the government had was the notion that constant criticism would make recruitment and even conscription difficult.” (source: This Day in History)

Enforcement: “Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.” (Source: Totally History)

See also David Greene, As the Espionage Act Turns 100, We Condemn Threats Against Wikileaks, Electronic Frontier Foundation, June 14, 2017

Historical Resources

→ Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harvard Law Review 932 (1919)

Karl N. Llewellyn, Free Speech in Time of Peace, 29 Yale Law Journal 337 (1920) (student comment)

Walter Nelles, In the Wake of the Espionage Act, The Nation (December 15, 1920)

Masthead from Masses magazine

Commentaries by Derik Bambauer, Erwin Chemerinsky, Geoffrey Stone & Stepehen Vladeck 

Backwards and Forwards

by Derek E. Bambauer

Many thanks to Ron Collins for the invitation to reflect on the centennial of the Espionage Act!

I want to argue that the Espionage Act is not only problematic on its own terms, but that it has paved the way for a newer set of worrisome statutes and dubious cases. These newer measures, like the Act itself, respond to an exaggerated sense of danger from internal and external threats. Courts and lawmakers alike have largely engaged in ahistorical analysis: they have failed to learn the lessons from the past. They underrated the perceived risk of subversive political speech in wartime in the early twentieth century, and they fail to question whether terrorism is a sufficiently existential threat today to warrant impingements on speech. I conclude that there are two possible responses, neither particularly promising.

To give the problems with the Espionage Act and its progency some currency, consider the current fight against the terror group ISIS in the Middle East. ISIS has taken a surprising amount of territory, and has become infamous for its horrific treatment of captives. There have been domestic attacks by individuals or small groups who claimed an association with or allegiance to ISIS. However, while these attacks are horrifying, even significant terror attacks are not existential threats to the United States.

But the perceived threat from ISIS has generated a disproportionate response, and one that frequently targets speech. For example, the assistant attorney general for national security said that people who are “proliferating ISIS social media” could be prosecuted under 18 U.S.C. 2339A (the material support statute). His contention was that disseminating ISIS’s point of view counts as providing “technical expertise” to a terrorist group. In 2012, the government successfully prosecuted Tarek Mehanna as a terrorist, in part because he translated al Qaeda writings and videos into English. The First Circuit Court of Appeals, in affirming his conviction, called terrorism the “modern-day equivalent of the bubonic plague” and an “existential threat” – an embarrassing example of hyberbole. And the Supreme Court has failed to rein in restrictions on speech justified as necessary for the war on terror. In Holder v. Humanitarian Law Project, the Supreme Court rejected a First Amendment challenge to the material support statute, highlighting the fact that completely independent political advocacy is not covered by the law’s prohibitions. (The challenge, of course, is determining when someone is “completely independent.”)

The material support statute is also problematic in that it defers decisions about what content should be criminalized to the executive branch. The State Department is empowered to determine which entities constitute terrorist groups. Coordinated political advocacy with groups on the list is a crime; advocacy for violent but not listed groups is safe. One person’s terrorist is another’s freedom fighter. There’s also the risk of one-way advocacy: if terrorist group calls for people to advocate on its behalf, and someone does so, does that count as coordination? And, of course, the Justice Department has charged Edward Snowden under the Espionage Act itself, and continues to investigate whether to prosecute WikiLeaks and Julian Assange under it.

These efforts seem similar to prosecutions in the early twentieth century under the Espionage Act that ultimately elucidated the weak form of the “clear and present danger” test. For example, Charles Schenck was convicted for distributing pamphlets for American Socialist Party that read “Assert your rights – do not submit to intimidation” – hardly stuff to stir the blood. The Socialist Eugene Debs was convicted for giving a speech titled “Socialism is the Answer.” And Jacob Abrams was an anarchist convicted for his criticism of the U.S. decision to defend Russia against the Bolsheviks.

There were similar trends during the Cold War. The Communist Eugene Dennis received his conviction for knowingly advocating the overthrow of the U.S. government by force. The Supreme Court called the Communist Party a “permanently organized, well-funded, semi-secret organization.” These cases demonstrate at least two parallels to current events. The first is a conception of political (largely foreign) enemies as an existential threat. The second is that the magnitude of this threat justifies restrictions on political speech and advocacy that would ordinarily be at the heart of First Amendment protection.

I can see two tentative responses to these problems, one pessimistic and one mildly optimistic.

The pessimistic channels Geoffrey Stone: we must accept as inevitable that there will be limits on political advocacy, especially in wartime, even if that war is a long twilight struggle rather than a declared conflict. This has the interesting side effect of making First Amendment less exceptional – there turns out to be an implicit balancing test even with “core” political speech. It might also be a useful descriptive exercise to examine the pendulum swing of First Amendment liberties – is it temporal in nature, or does it relate primarily to subject matter?

The optimistic idea is to draw upon the historical parallels elaborated above: neither socialists nor Communists proved an existential threat to U.S. politics and institutions, despite the heated fears of the moment. This requires more work on our collective part: we have to hold the government to its burden when it seeks to restrict speech, first by questioning the characterization of information as a threat, and second by carefully policing the line between conduct and speech when regulations are proposed or promulgated. That will require political courage – always in short supply – and legal analysis grounded in history.

The Espionage Act ought to teach us that these are vital assets in our self-governance, but it’s not clear we have yet learned the lesson.

A Loaded Gun

By Erwin Chemerinsky

The Espionage Act of 1917 is a loaded gun waiting for the federal government to use it to punish speech. Indeed, throughout its history, it has been used to punish speech that should be deemed constitutionally protected. I especially worry that the Obama administration has set a precedent for the Trump administration, which has shown great hostility to the press. Since the enactment of the Espionage Act of 1917, twelve prosecutions have been brought under it for disclosures of information and nine of those were during the Obama administration.

The Espionage Act, by its very terms, is directed at restricting speech. The law makes it a crime to convey information with the intent to interfere with the operation of the armed forces or to promote the success of its enemies. The Act also makes it a federal crime to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. Yet another provision gives the Postmaster General the authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.

The Act has been used to punish speech. Most famously, it was used to punish speech during World War I that the First Amendment never should have allowed to be punished. In Schenck v. United States, the Court considered the conviction of two individuals – Charles Schenck and Elizabeth Baer – who were prosecuted for circulating a leaflet arguing that the draft violated the Thirteenth Amendment as a form of involuntary servitude. The leaflet was titled, “Long Live the Constitution of the United States.”   It said, ‘‘Do not submit to intimidation,’’ and ‘‘Assert Your Rights,’’ but did not expressly urge violation of any law; it advocated repealing the draft law and encouraged people to write to their representatives in Congress to do so.

There was not any evidence that their leaflet had any effect in causing a single person to resist the draft. Nonetheless, they were prosecuted and convicted and sentenced to jail for violating the 1917 Act. The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upheld their convictions and sentences; he dismissed as irrelevant that the leaflet had no effect.

A week after Schenck was announced, the Court upheld convictions under the 1917 Act in two other cases, Frohwerk v. United States and Debs v. United States.   Jacob Frohwerk was the publisher of a German language newspaper, Missouri Staats-Zeitung. He was prosecuted for a dozen articles published between June and December 1917. Again, the speech was the antithesis of shouting fire in a crowded theater or that which would pose a clear and present danger.   Without doubt, any court today would regard it as expression protected by the very core of the First Amendment. It took the jury only three minutes of deliberation to convict Frohwerk of violating the 1917 Espionage Act and the judge sentenced him to 10 years in prison for his writings. The Supreme Court affirmed.

Albert Burleson was appointed Postmaster General by Woodrow Wilson

In Debs v. United States, the Court affirmed the conviction of Socialist Party leader Eugene Debs who had been sentenced to jail for ten years for violating the 1917 Act. Debs was a national political figure, having run for President in 1900, 1904, 1908, and 1912. Debs was convicted for a speech that was primarily advocacy of socialism, but it included some mild criticism of the draft. At one point in a long speech, Debs remarked that he had to be ‘‘prudent’’ and not say all that he thought, but that ‘‘you need to know that you are fit for something better than slavery and cannon fodder.’’ For this mild statement Debs was convicted of attempting to incite disloyalty in the military and obstruct the draft. Again, the Supreme Court affirmed.

Moreover, during World War I, the Postmaster used the authority under the statute to seize magazines and newspapers. Albert Burleson, a reactionary racist from Texas who despised labor unions and the people who supported them, began a campaign to root out magazines and newspapers that promoted socialist or radical causes.

The subsequent use of the Espionage Act reinforces reasons for great concern. It is the statute used to prosecute Daniel Ellsberg and Chelsea Manning. It is a law that can be used to punish those who provide information to the press and to those who disseminate information. The Act is so broadly written that there is no way to know the speech that it has chilled over the years. I have great fears of how it might be used in the next four years with a President who has shown such great hostility to the press.

When Can a Government Employee Leak Classified Information?

by Geoffrey R. Stone

The Espionage Act of 1917, as amended over the years, forbids government employees to disclose classified information to any person who is not authorized to have access to it. For this reason, most prosecutions of government leakers of classified information have relied upon the Espionage Act. The Act recognizes no defense for government employees who leak such information. This is one of Edward Snowden’s justifications for refusing to return to the United States to face prosecution. He maintains that the absence of a defense that would exonerate government leakers of classified information whose acts do more good than harm is unjust. As we look to the future, a central question is whether the Espionage Act should be amended to recognize such a defense.

Edward Snowden (credit: The Guardian)

At first blush, there is obvious logic in Snowden’s position. After all, if someone does more good than harm, shouldn’t they be free to do the good? Moreover, this seems especially sensible in the context of classified information, because the test for classification is whether the disclosure of the information might “reasonably be expected to harm the national security.” There is no balancing at all of good versus harm. The standard does not take into account the possible benefits of the leak and it does not require that the harm be likely, imminent, or grave.

Moreover, the government quite predictably tends to over-classify information. The simple rule is: Better be safe than sorry. In addition, we know from experience that public officials have on occasion abused the classification system in order to hide from public scrutiny their own misjudgments, incompetence, and venality.

In light of these concerns, it might seem logical to amend the Espionage Act to permit a government employee legally to disclose classified information whenever she can demonstrate that the benefit of the disclosure outweighed the actual harm to the national security. Why shouldn’t Edward Snowden have such a defense, if he can prove the case? After all, granting such a high level of deference to the government in these situations significantly overprotects government secrecy at the expense of both official accountability and informed public debate. Even worse, in some situations the leaker might disclose the existence of programs that are themselves unlawful. In that case, how can it possibly be right to make it a crime for the government employee to disclose the information to the public?

The government’s response to all this is fairly straightforward. First, except in extraordinary circumstances like self-defense, we don’t give individuals a right to break the law because, in the circumstances, committing the crime might do more good than harm. For example, if X steals someone’s purse because he needs money to feed his children, he could easily argue that his theft did more good than harm, but that is not a defense. One could, of course, multiply that hypothetical endlessly.

Second, there are more than a million government employees and private contractors who have access to classified information. The government will argue that it would be reckless in the extreme to permit each of those individuals to think that it is permissible for them to disclose classified information whenever they conclude that the good would outweigh the harm. Even if in some instances they might be right, often they will be wrong – especially because individual government employees and contractors are rarely in a position to understand how the information they plan to disclose might damage the national security. Thus, the government will argue, the only sensible thing to do is to take that option away from these employees. Finally, the government will point out that in order to prove in court that a leak caused substantial damage it would often have to reveal even more classified information, often including sources and methods, which would make such inquiries especially problematic.

So, what’s to be done? It seems unlikely that the Supreme Court will recognize a First Amendment right of government employees to leak classified information. The implementation of a constitutional rule that permits leaks would just be too messy for the Court to impose or to implement. As a legislative matter, though, it would make sense to create some internal mechanism through which these employees can raise their concerns, especially if they believe the programs at issue to be unlawful. To-date, though, there seems to be little interest in such an option. Another possibility, of course, is simply to tighten up the standards and procedures for classification. No one doubts that we currently live in a world of gross over-classification.

Are there cases one can imagine in which even under existing law it would seem implausible to punish a leaker? Suppose an FBI agent learns from a classified document that at the direction of the Russian government the FBI assassinated the president? I rather suspect that if she leaked that information, assuming it is accurate, she would not go to jail.

It’s (Long-Past) Time to Modernize the Espionage Act

by Stephen Vladeck 

For a law that turns 100 today, and that’s only been materially amended once in a century, the Espionage Act has sure enjoyed a popular resurgence of late. President Barack Obama used it to prosecute more leakers than all previous Presidents put together. Critics of Secretary Hillary Clinton’s unauthorized use of a private e-mail server sought desperately to make the (legally unconvincing but politically damaging) argument that she had violated the statute. And when former FBI Director Jim Comey revealed just last week that he had been responsible for leaking a memo memorializing a conversation he had with President Trump, commentators quickly gravitated toward the Act as proof that, if any laws were broken as part of Comey’s termination, it was the old chestnut herself through Comey’s transgression.

U.S. Army Intelligence WW I Poster Warned Americans About German Spies.

What all of these recent stories have in common is the absence of actual “espionage”— the conduct that motivated Congress to enact the law in the first place. The Act was written on the eve of the United States’s entry into World War I, and, as importantly, before the emergence of either the modern terminology for national security classification or the Supreme Court’s modern First Amendment and vagueness jurisprudence. But because Congress has resisted decades of calls to revisit it, it remains on the books mostly as initially enacted—a statute aimed at German spies. Its clunky and capacious language paints with the same brush three distinct offenses:

  1. classic espionage,
  2. leaking, and
  3. the retention or redistribution of national defense information by third parties.

Part of why it’s so problematic that the Espionage Act treats these three very different sins as the same crime is because of its outdated (and outmoded) language. We now have a sophisticated series of Executive Orders that define and regulate the scope of “classified” national security information, and that have, unlike the Espionage Act, regularly been updated to respond to changes in technologies and threat vectors. One would think it is those provisos, and not a century-old statute, that better reflect the true contemporary scope of “information relating to the national defense.”

And, along with classification, we also now have a far-more-sophisticated understanding of the problem of over-classification—and why it’s so problematic that courts have refused to recognize “improper classification” as a defense to an Espionage Act prosecution. Thus, the more information that has become classified, the easier it has become to violate the Espionage Act through conduct that bears increasingly less resemblance to spying.

Finally, we also now have First Amendment jurisprudence that recognizes at least some circumstances (albeit virtually none thus far involving national security information) in which the disclosure of certain previously confidential material might be of such surpassing public concern as to be protected by the First Amendment even when it might otherwise be unlawful. But the 100-year-old verbiage of the Espionage Act doesn’t account for any of these developments. That may be why, 37 years ago (before it qualified for Medicare), the Act was decried by Anthony Lapham, then the General Counsel of the CIA, as the “the worst of both worlds.” As he then explained to Congress:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

Modernizing the Espionage Act won’t be easy. But 100 years in, it’s long past time for Congress to do so.

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FAN 155 (First Amendment News) “The Past, Present and Future of Free Speech” — Journal of Law and Policy posts First Amendment Symposium

Professor Joel Gora

When it comes to First Amendment symposia, Brooklyn Law School seems to be the go-to-venue, at least judging from the latest issue of the Law School’s Jounral of Law and PolicyThe symposium was done under the watchful eye of Professor Joel Gora, who authored the Introduction — The Past, Present and Future of Free Speech. In that introuction Gora writes:

This may be a historic moment for the First Amendment. In 2016, a landmark Supreme Court ruling turned forty, the Supreme Court turned a corner, and First Amendment rights may turn out to be strengthened. January 30, 2016 marked the fortieth anniversary of the U.S. Supreme Court’s landmark decision in Buckley v. Valeo, dealing with the clash between First Amendment rights and campaign finance limits. And February 12, 2016, the day Supreme Court Justice Antonin Scalia died, marked the end of a ten-year period when the “Roberts Court” became perhaps the most First Amendment friendly and speech-protective Court in the Nation’s history. And the surprise outcome of this past presidential election may, unexpectedly, enhance the future of free speech, because Judge Neil Gorsuch, Donald Trump’s nominee to succeed Justice Scalia, seems to be a strong supporter of the First Amendment

The contents of the symposium are set out below.

  1. A Landmark Decision Turns Forty: A Conversation on Buckley v. Valeo by Ira Glasser, Nicholas W. Allard, & James L. Buckley
  2. Free Speech Under Fire: The Future of the First Amendment by Nicholas W. Allard & Floyd Abrams
  3. Free Speech Matters: The Roberts Court and the First Amendment by Joel M. Gora
  4. Where’s the Fire? by Burt Neuborne
  5. Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection by Andrew P. Napolitano
  6. Freedom of Speech and Equality: Do We Have to Choose? by Nadine Strossen
  7. The Academy, Campaign Finance, and Free Speech Under Fire by Bradley A. Smith
  8. Money and Speech: Practical Perspectives by Nicholas W. Allard
  9. Producing Democratic Vibrancy by K. Sabeel Rahman
  10. Persistent Threats to Commercial Speech by Jonathan H. Adlers

Group Argues that Trump’s Blocking Twitter Account Violates First Amendment

In a June 6, 2017 letter to President Donald Trump, lawyers for the Knigth First Institute at Columbia University called on the President to unblock their clients’ accounts.  The Institute represents two Twitter users who while using @RealDonaldTrump were blocked after they posted tweets critical of Trump.

Below are some excerpts from the Institute’s letter, which was signed by Jameel Jaffer, Katie Fallow and Alex Abodo:

Accordingly, the Institite called on President Trump or his aides to “immediately unclock our clients’ accounts and the accounts of others who have been blocked because of their views.”

Professor Volokh Responds

 Eugene Volokh, Is @RealDonaldTrump violating the First Amendment by blocking some Twitter users?, The Volokh Conspiracy, June 6, 2017

Did the President violate the Institite’s clients’ First Amendment rights?  “I think that’s not quite so,” replied Eugene Volokh, “though the matter is not open and shut.”

Here, in abreviated form, is why Professor Volokh says so by way of his “tentative thinking on the matter”:

  1. “[M]y inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views — apparently in his own words and with his own typos — rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment. And I think that’s so even if he gets some help from government-employed staff in running it.”
  2. “But what if I’m mistaken, and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment? . . . But even if he reads a few of his notifications, there’s no First Amendment problem with his refusing to read those that come from particular people. Speakers ‘have no constitutional right to force the government to listen to their views.'”
  3. ” Another effect is that the blocked users can’t follow @RealDonaldTrump, and can’t view or search his messages while logged on. But all they need to do is log off and go to http://twitter.com/RealDonaldTrump, and they’ll see them all. I do think that the First Amendment bans viewpoint-based interference with people’s ability to acquire information and not just with their ability to convey it . . . .”
  4. “If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.”

Invitation

I have invited Jameel Jaffer to respond to Professor Volokh’s critique and will happily post his reponse.

Espionage Act tapped to prosecute intelligence contractor

Reality Leigh Winner

This from Charles Savage writing in the New York Times: “An intelligence contractor was charged with sending a classified report about Russia’s interference in the 2016 election to the news media, the Justice Department announced Monday, the first criminal leak case under President Trump.”

“The case showed the department’s willingness to crack down on leaks, as Mr. Trump has called for in complaining that they are undermining his administration. His grievances have contributed to a sometimes tense relationship with the intelligence agencies he now oversees.”

“The Justice Department announced the case against the contractor, Reality Leigh Winner, 25, about an hour after the national-security news outlet The Intercept published the apparent document, a May 5 intelligence report from the National Security Agency. . . .”

“It was not immediately clear who is serving as the defense lawyer for Ms. Winner, who has been charged under the Espionage Act.”

Related

Erik Wemple, Did the Intercept bungle the NSA leak?, Washington Post, June 6, 2017

Coming Next Week: Special FAN post re 100th Anniversary of Espionage Act 

Next Thursday, June 15th, I will post a special issue of FAN to mark the 100th anniversary of the Espionage Act of 1917. The following individuals will offer comments on the Act and its possible use in modern times:

  1. Derek Bambauer
  2. Bruce Brown
  3. Erwin Chemerinsky
  4. Geoffrey Stone, and
  5. Stephen Vladeck

 The post will also contain a package of resource materails prepared by Jackie Farmer and Robert Shibley who oversee, with me, FIRE’s online First Amendment Library.

Herbst & Stone on “The New Censorship on Campus” 

Read More

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FAN 154 (First Amendment News) Oregon ACLU: Attempt to Quash Alt-Right Rallies Would Violate First Amendment

If the government has concrete evidence of an imminent threat they can and should address it, without restricting 1A rights of all. Oregon ACLU 

 Our hearts are broken, but government censorship is not the answer. We must defend the constitution even when it is uncomfortable.Mat dos Santos, Oregon ACLU Legal Director

Mayor Ted Wheeler

In the aftermath of a brutal anti-Muslim attack involving the slaying of two men and the serious injury of a third, Portalnd Mayor Ted Wheeler declared that “[o]ur city is in mourning, our community’s anger is real.” Because of that, Wheeler aksed  the federal government to revoke permits for two free speech rallies slated for next week by right-wing groups. The “timing and subject of these events can only exacerbate an already difficult situation,” he stressed. “I am calling on every elected leader in Oregon, every legal agency, every level of law enforcement to stand with me in preventing another tragedy,” he added. (Video of Mayor’s statement here.)

The Organizers 

According to KGW News in Portland, “Joey Gibson is organizing a rally on June 4 and has already received a permit for the event at Shrunk Plaza from the federal government, which controls the downtown park. A second rally is scheduled for June 10 but is not yet permitted.” Both were planned prior to the recent attack.

The event, billed as the “Trump Free Speech Rally,” is, according to its organizers, slated to consist of “speakers exercising their free speech, live music, flags, and an uplifting experience to bring back strength and courage to those who believe in freedom.Thank you Trump for all you have done.” (Video by Joey Gibson here re upcoming rallies.)

  Joey Gibson

The Mayor’s Statement

“‘My main concern is that they are coming to peddle a message of hatred and of bigotry,’ Wheeler told reporters, referring to organizers of the two rallies. ‘They have a First Amendment right to speak, but my pushback on that is that hate speech is not protected by the First Amendment to the United States Constitution.'” (Source: CNN)

Oregon ACLU Response

ACU’s Mat dos Santos

Enter the ACLU.  According to a story by Aaron Mesh writing in the Willamette Week, the “American Civil Liberties Union of Oregon says that Mayor Ted Wheeler’s efforts to keep far-right protesters from holding more rallies in Portland is an unconstitutional violation of the First Amendment.”

“The government cannot revoke or deny a permit based on the viewpoint of the demonstrators,” The ACLU said. “Period. It may be tempting to shut down speech we disagree with,” the statement continued, “but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.”

“We are all free to reject and protest ideas we don’t agree with. That is a core, fundamental freedom of the United States. If we allow the government to shut down speech for some, we all will pay the price down the line.”

Organizer Disavows Affiliation with Alleged Attacker 

As reported in the KGW news story, Joey Gibson, “who runs the group Patriot Prayer, said he is a Libertarian and does not promote hate speech. ‘I promote freedom. I promote love and I promote bringing spirituality back into this country,’ he said.Gibson said if the permit is revoked, the event could be more dangerous. He said he won’t be able to kick people out if they’re causing problems. . . . ‘Jeremy Christian has nothing to do with us and nothing to do with our movement,’ he said.”

Christian, the man alleged to have knifed three men on a MAX train, is said to have “yelled slurs at two teenage girls on the train, one of whom was wearing a hijab, when the other men intervened to try to talk him down.”

Jeremy Christian “was kicked out of a prior Patriot Prayer demonstration,” Gibson said.

Allan Brettman, Portland suspect in 2 slayings on train is known for hate speech, The Oregonian, May 28, 2017

V.P. Pence on Campus Speech Codes Read More

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FAN 153 (First Amendment News) POLICYed & Richard Epstein Bring Free-Speech Lessons to Digital Media

If you watch music videos or wild-animal adventures on YouTube, you may come upon a public-service announcement by, yes, Professor Richard Epstein. Well, sort of — he’s the brain power behind an animated and podcast series on free speech.

The series is titled Intellections: Activate Your Thinking and contains videos on a range of topics from rent control to health-care insurance to free speech and beyond. Intellections is part of POLICYed, which is funded by the Hoover Institution located on the campus of Stanford University.

Below are three animated videos for which Professor Epstein helped prepare the content:

  1. Should Speech that Offends be Prohibited? (transcript here)
  2. Who Can Restrict Free Speech? (transcript here)
  3. The Limits of Free Speech? (transcript here)

Related Podcasts

  1. The Libertarian: “Yale, Safe Spaces, And Free Speech” (Troy Senik interviewing Richard Epstein)
  2. Mob Censorship on Campus (Troy Senik interviewing Richard Epstein)
  3. The Libertarian: Free Speech on College Campuses (Troy Senik interviewing Richard Epstein)

Fourth Circuit: Wikimedia Has Standing to Challenge NSA Surveillance Program

The case is Wikimedia Foundation, et al v. National Security Agency, et al (4th Cir., May 23, 2017).

Judge Albert Diaz

Plaintiffs Claims: “Plaintiffs—educational, legal, human rights, and media organizations—filed their first amended complaint wherein they ask for, among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA ‘to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.'”

Summary from the court: “The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the “NSA”). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.”

Judge Albert Diaz wrote the majority opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Judge Davis wrote a separate opinion dissenting in part.

Majority Opinion: Article III Standing: “[T]he Wikimedia Allegation is that the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications in the course of Upstream surveillance, ‘even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.’ We conclude that this allegation satisfies the three elements of Article III standing.”

“. . . because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”

Judge Andre Davis

Judge Andre Davis, concurring in part and dissenting in part: “I agree with the holding that Wikimedia has standing to challenge the NSA’s surveillance of its internet communications. However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part.”

→ Counsel for AppellantsPatrick Christopher Toomey, ACLU Foundation, New York

→ Counsel for AppelleesCatherine H. Dorsey, United States Department of Justice

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

Court Summarily Affirms “Soft Money” Case: Hasen’s Commentary  Read More

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

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

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

∇ ∇ ∇ ∇ 

Morgan Weiland

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

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

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

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

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

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

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

 Related 

Weiland on Press Clause & Shield Legislation 

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

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

Podcast: Interview with former ACLU Executive Director Ira Glasser

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

Ira Glasser

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

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

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

Related 

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

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

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FAN 150 (First Amendment News) Trend Ends: ACLU’s 2017 Action Plan Stands “Up for Free Speech”

Throughout our history, the ACLU has stood up for freedom of speech and the right to dissent.  From providing know-your-rights materials, to sending trained legal officers to protests, to bringing critical lawsuits defending free speech, the ACLU is on the ground across the country ensuring that people’s voices can be heard. — 2017 Workplan

After a two year hiatus, the American Civil Liberties Union has reaffirmed its long-standing commitment to free-speech rights, this in its 2017 workplan. The group’s latest workplan contains a section on safeguarding free-speech rights. The 2017 “ACLU Strategy for Defending the Constitution” includes a segment entitled “Standing Up for Free Speech and Protestor Rights.” This portion of the work plan was part of an eight-page mailer sent out to ACLU members. The 2016 and 2015 workplans, by contrast, omitted any mention of protecting First Amendment free-expression rights.

“From Standing Rock to the Women’s March, from airport protests of the Muslim ban to Black Lives Matter marches across the country,” the workplan states, “we are experiencing historic levels of protest.  The whole point of lifting up your voice is making sure your elected officials hear you.”

Anthony Romero, ACLU Executive Director

“The response to these powerful displays of democracy in action? Legislators in at least 15 states have proposed new laws to criminalize and penalize protest activities. Some of these have been dressed up as bills having to do with obstruction or public safety, but at their core they have one intent and effect — and that is to suppress dissent.”

“. . . The ACLU will fight in statehouses against any bill that violates the First Amendment, and for any that become law, we stand ready to go to court.  We’re confident the courts will see these bills for what they are: unlawful infringements of people’s right to speak out.”

“We’ve also seen a troubling trend of companies attempting to squelch the freedom of speech of the people who disagree with their practices.  Take the residents of Uniontown, Alabama for example. When four residents of Uniontown — a poor, predominately black town with a median per capita  income of $8,000 — decided to fight the hazardous coal ash that Georgia-based Green Group Holdings keeps in a landfill in their community, they were sued for defamation by the company to the tune of $30 million.”

“No one should face a multimillion-dollar federal lawsuit just for organizing and speaking out for the health and well-being of their community. The ACLU took up the case and won a critical victory on behalf of the residents of Uniontown when the court dismissed the case. . . .”

Woman Convicted for Laughing During Congressional Hearing

One horselaugh is worth ten thousand syllogisms.” — H.L. Mencken

Ms. Desiree Fairooz

According to Ryan J. Reilly writing in the Huffington Post,  a “U.S. Capitol Police officer . . . decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January . . . . [P]rosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody. . . .”

“Desiree Fairooz, [a librarian and 61-year-old] activist affiliated with the group Code Pink, . . . laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of ‘treating all Americans equally under the law is clear and well-documented.’ Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room. . . .”

**** Ben Mathis-Lilley writing in Slate has just reported that a “jury in Washington has convicted a 61-year-old protester named Desiree Fairooz of disorderly conduct and “parading or demonstrating on Capitol grounds” because she laughed out loud during Attorney General Jeff Sessions’ confirmation hearing. Fairooz could be sentenced to up to a year in prison. . . .”

Press Advisory, CODEPINK Members Stand Trial for Intervening at Jeff Session Confirmation Hearing, May 1, 2017

James Bovard, Arresting someone for laughing may sound funny, but it’s no joke, Washington Post, May 3, 2017 (“It isn’t the first time federal cops have attempted to enforce the difference between licit and illicit laughter, though, and unfortunately, it might not be the last. Laughing got me tossed out of the press box at the Supreme Court in March 1995. I was on assignment for Playboy, covering arguments in a case involving an Arkansas woman who had sold a small amount of illegal drugs to a government informant and was later the target of a no-knock police raid. Then, too, some laughter was okay, and some wasn’t: When then-Chief Justice William Rehnquist mocked one lawyer’s assertion, everyone in the house responded with a polite chuckle.”)

Christopher Mele, Is It a Crime to Laugh at a Congressional Hearing? A Jury Will Decide, New York Times, May 3, 2017 (“Two other activists, Tighe Barry and Lenny Bianchi, dressed as Ku Klux Klan members with white hoods and robes, stood up before the hearing started and were also charged.All three pleaded not guilty to the charges, rejecting a plea deal and demanding a trial. If she is convicted on both charges, Ms. Fairooz said she faces up to 12 months in prison.”)

Headline: Trump’s Chief of Staff threatens free speech crackdown Read More

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Looking back on Bridges v. California (1941) — Some random thoughts inspired by Floyd Abrams’ new book

The Bridges opinion was “a judicial Declaration of Independence for the First Amendment, freeing it from English law.” — Benno C. Schmidt

Harry Bridges

One sign of a good book is its ability to engage readers, to pique curiosity, and to urge one to return anew to something largely known but mostly forgotten. By that measure, Floyd Abrams’ latest book (The Soul of the First Amendment) is a valuable book.

In reading this so-called “modest essay” — Abrams tags it “ruminations about certain aspects of American constitutional law” — I was drawn back to a Bridges v. California (1941), the contentpt of court case involving the militant Harry Bridges, the then conservative Los Angeles Times, and their unrestrained comments on a then pending case.

Abrams devotes the better part of a concise chapter to this First Amendment majority opinion authored by Justice Hugo Black. The Court divided 5-4 with Justice Felix Frankfurter registering a stinging dissent.

Bridges is “a seminal but too-little recalled First Amendment case” writes Abrams.  I agree. Many con-law casebooks do not even cite the case anymore.

After reading the Bridges chapter, which is rich with important observations and comments, I went back and did some research on the case. Here is what I found — several revealing facts nearly lost to time.

Justice Douglas Edmonds

The Importance of a Forgotten State-Court Dissent: Does the name Douglas Lyman Edmonds (1887-1962) ring a bell? There is no reason it should except for the fact that he authored a powerful lone dissent when the California Supreme Court ruled on the  case in 1939.

  • Edmonds’ dissent drew in part on a 1928 Columbia Law Review article entitled “Contempt by Publication in the United States.” It was written by Walter Nelles (co-founder of the ACLU and co-counsel in Gitlow v. New York and Whitney v. California) and Carol Weiss King (one of Bridges’ lawyers and one of the founders of the National Lawyers Guild).
  • After discussing British constitutional history, Edmonds wrote: “The concept of freedom of the press, stated by Blackstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that ‘the liberty of the press … consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’ . . . is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920), 8 et seq.”
  • And then following more extended discussions of federal and state laws (decisional and statutory laws), Edmonds declared: “The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court.”
  • “The rights of freedom of speech and of the press,” Edmonds added, “have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their Constitution ‘that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.’ For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.”
  • He closed his dissent with these words: “When free speech is fettered, liberty is a meaningless word.”

More, much more, can be said about this remarkable dissent, but that is a task for another day.

A.L. Wirin

The Importance of the Counsel in the Case: Turning back the pages of history reminds us that two rather important ACLU lawyers represented Bridges in the U.S. Supreme Court:

  • Osmond K. Fraenkel argued the case. Earlier, he represented the defendants in the Sacco-Vanzetti case and was one of the attorneys for Scottsboro boys. Fraenkel argued 26 cases  in the Supreme Court.  He was the lead counsel for the petitioners in  De Jonge v. OregonKunz v. New York and Schneider v. New Jersey. [Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (2009), p. 200]
  • A. L. Wirin was with Fraenkel on the Bridges brief. Wirin was the first full‐time lawyer for the ACLU and served as chief counsel of the ACLU of Southern California for four decades. As Sam Walker noted: Wirin “particularly distinguished himself during the Japanese-American internment when he and the ACLU affiliate sought an aggressive challenge to the government’s catastrophic program.” Wirin was counsel for the petitioner in Korematsu v. United States

Here is an excerpt from the Fraenkel-Wirin brief, a passage that apparently got the attention of Justice Black when he authored his majority opinion:

“The ‘Inherent Tendency’ and ‘Reasonable Tendency’ rule applied by the California Courts to publications pertaining to issues pending in the courts are too vague and indefinite… They offend due process of law and deprive the petitioner of freedom of speech and freedom of the press… Only the application of the ‘clear and present danger’ or the ‘actual obstruction’ principle to publications alleged to be in contempt of court will reconcile the independence of the judiciary with freedom of the press.”

The Importance of Fate: The Bridges case was first argued on Friday October 18th and on Monday October 21st of 1940. At the time of the conference, Chief Justice Charles Evans Hughes found it to be an easy case. In conference he was straightforward: “The facts here transcend the limits of reasonable discussion and I think [the lower court] should be affirmed.” (Roger K. Newman, Hugo Black: A Biography (1994), p. 290).  With that he assigned the majority opinion to Justice Frankfurter with Black, Reed and Douglas in dissent.  But then Fate changed things.

Anthony Lewis

As Anthony Lewis noted, on February 1, 1941, Justice James McReynolds retired.  “That left a five-to-three majority for affirmance.” And then Justice Frank Murphy jumped ship and joined with the dissenters.  That left the vote at four-to-four.  “At the end of the term,” Lewis added, “Chief Justice Hughes retired, leaving only three votes to affirm the contempt convictions.” [Anthony Lewis, “Justice Black and the First Amendment,” in Tony Freyer, Justice Hugo Black and Modern America (1990), pp. 237-252.]

And then two new members joined the Court: Justices James Byrnes and Robert Jackson.  Byrnes voted to affirm, Jackson to reverse. The result: a new majority with Black writing for the Court and Frankfurter dissenting.

The Importance of the Date: The 5-4 ruling in Bridges v. California came down on December 8, 1941 — the day after the attack on Pearl Harbor. That was also the day when President Roosevelt spoke to Congress at noon to request a declaration of war from the House.

Meanwhile, at the Court there was great division. On the one hand, Justice Black declared that “[h]istory affords no support for the contention” that speech could be abridged merely because it was directed at a judge sitting in a case. On the other hand, Justice Frankfurter was adamant that “[o]ur whole history repels the view [that a] newspaper to attempt to overawe a judge in a matter immediately pending before him.”

While war was afoot in the nation, freedom was being debated in the nation’s highest Court.

The Importance of Four Unpublished Sentences: In a draft of his original dissent, Justice Black penned the following words, which never appeared in his majority opinion:

 First in the catalogue of human liberties essential to the life and growth of a government of, for, and by the people are those liberties written into the First Amendment to our Constitution. They are the pillars upon which popular government rests and without which a government of free men cannot survive. History persuades me that the moving forces which brought about the creation of the safeguards contained in the other sections of our Bill of Rights sprang from a resolute determination to place the liberties defined in the First Amendment in an area wholly safe and secure against any invasion — even by government. [Howard Ball, Hugo L. Black: A Cold Steel Warrior (1996), p. 191]

And then there was this line: Narrow abridgments have a way of broadening themselves[Newman, supra, at p. 290, n. *]

Hugo Black (1937: credit: Harris & Ewing)

The Importance of the Bridges TestJustice Black harbored no fondness for Holmes’ clear-and-present danger test. Still, in Bridges he did give it a judicial nod of sorts, but then pointed beyond it:

What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

The Importance of  Three PrecedentsAs Anthony Lewis saw it, Bridges was part of a trilogy of First Amendment cases that changed the conceptual landscape of American free-speech law. The other two cases were Near v. Minnesota and New York Times Co. v. SullivanHere is how Lewis put it:

  • What Near did for our law of prior restraints from English tradition, and Bridges for our law of contempt, the 1964 decision in . . . Sullivan did for libel.

What is also key to these three rulings, and what also links them together, is that unlike earlier First Amendment cases that “focused on the harm speech could do,” Near, Bridges and Sullivan focused instead on “the good it could do.”

  • “Chief Justice Hughes found affirmative reasons for a free press.”
  • “Justice Brennan spoke of our ‘profound commitment to the principle that debate on public issues should be ‘uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'”
  • And then there was Justice Black: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”

* * * * *

Justice Louis Brandeis

As Frankfurter told it, Justice Brandeis allegedly agreed with him and disfavored Black’s view in Bridges: “Black and Co.,” he had Brandeis saying, “have gone mad on free speech.” [H.N. Hirsch, The Enigma of Felix Frankfurter (1981), p. 158] Professor Hirsch noted that it was not “possible to verify this story.” [Id. at 240, n. 115].

True or not, one thing was certain: “Bridges cut deeply into Frankfurter’s sense of well-being.” [Id. at p. 158] And perhaps that explains FF’s need to find a purported ally in Brandeis.

Lewes was understandably skeptical: “I should not leave unquestioned any assumption that Justice Brandeis would in the end have disagreed with the Black view in Bridges if he had still been on the Court. No doubt fair trial was an important value for him, and he might well have been reluctant to limit the power of judges to punish comments threatening that fairness. But it is also true that Brandeis considered freedom of speech a positive good, and he made the case for that belief with compelling eloquence.” [Lewes, supra, at p. 245]

The battle between Black and Frankfurter continued for decades thereafter. Ultimately, however, the spirit of Brandeis’ free-speech jurisprudence pointed more towards Black’s expansive views than towards Frankfurter’s cramped ones. Perhaps that explains why Mr. Abrams began his book with an epigraph quote from Justice Black:

The very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.  

And to think that much of that heroic spirit traced back to Bridges . .  . first in Justice Edmonds’s dissent, then in the work done by Fraenkel  and Wirin, followed by the Black dissent that became a majority opinion, and ultimately capped by Tony Lewis’s revealing explanation of it all.

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FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

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FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

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