Tagged: First Amendment law


FAN 174.2 (First Amendment News) Floyd Abrams Institute: Call for Abstracts for Scholars’ Conference

Call for Abstracts & Participants: Freedom of Expression Scholars Conference

The Floyd Abrams Institute for Freedom of Expression invites applications to participate in the sixth annual Freedom of Expression Scholars Conference (FESC).

 Conference Date: The conference will be held at Yale Law School in New Haven, Connecticut from April 27–29, 2018.

→ Response Date: All those interested in presenting a paper or commenting on a paper respond by February 23, 2018.

At FESC, scholars and practitioners discuss works-in-progress on the freedoms of speech, expression, press, association, petition, and assembly as well as on related issues of knowledge and information policy. FESC has become a fixture on the calendar of leading First Amendment thinkers and scholars nationwide.

The paper titles and attendees from prior conferences are available here:

→ Workshop Sessions: Each accepted paper is assigned to a discussant, who will summarize the paper for the workshop audience, provide feedback, and lead a discussion. Workshop sessions are typically lively discussions among authors, discussants, and participants. Sessions run from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening. Conference participants are expected to read the papers in advance and to attend the entire conference.

Papers are accepted on a wide array of freedom of expression and information policy topics. Although participation at the conference is by invitation only, we welcome paper proposals from scholars, practitioners, and free speech advocates all over the world. Please feel free to share this call for submissions widely.

→ Abstract Submissions & Due Date: Titles and abstracts of papers should be submitted electronically to Heather Branch no later than February 23, 2018.

→ For Additional Information: Those interested in attending the conference or acting as a discussant should also contact Heather Branch no later than February 23, 2018.

→ Due Date for Completed Papers: Workshop versions of accepted papers will be due on March 30, 2018, so that they can be circulated to discussants and other conference participants.

→ Travel & Accommodations: Participants will ask their home institutions to cover travel expenses. However, thanks to a generous donation from the Stanton Foundation, we are able to offer Abrams Travel Fellowships to cover some of the costs associated flights, lodging, and reasonable travel expenses for presenters and discussants who would not otherwise be able to attend. This fellowship is intended to encourage submissions from junior faculty and lawyers. Should you be invited to participate as an author or discussant, please inform us in your response whether you will require Abrams Travel Fellowship funding.

→ For Additional Information: Re questions: contact Heather Branch.


FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?

Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,

Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled

Natural Rights and the First Amendment

ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Professor Jud Campbell

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Nico Perrino over at FIRE interviews Professor Campbell in a So to Speak podcast

Newly Posted Historial Documents Read More


FAN 173.2 (First Amendment News) First Amendment Clinic Coming to Vanderbilt Law // Full-time Director Sought

Vanderbilt University Law School seeks applicants for a full-time clinical faculty position. The successful applicant will design and direct a First Amendment Clinic focused on speech, press, and assembly rights. In addition to teaching a live-client clinic, the successful applicant will also have the opportunity to teach a non-clinical course and to engage in writing as well as community and professional service.

The First Amendment Clinic is funded for an initial five-year period, after which continuation is contingent on securing additional funding.

Please send a cover letter, resume, clinic proposal/research agenda, and list of references to:


→ This from an e-mail from Professor Terry A. Maroney: Under the TN student practice rule, clinic representation is limited to persons or entities who cannot otherwise obtain counsel – so, as a general matter, this would be focused on speech, assembly, and press claims raised by poor persons, children (e.g., expression rights at school), and community organizations. Our ideal candidate is someone with a passion for free speech, meaningful litigation experience, and direct experience in teaching and mentoring law students. Other than the soft-money aspect, we anticipate that the First Amendment clinical professor would enjoy the same benefits of all our other clinical professors (e.g., non-tenure-track, with term contracts, but eligible for promotion from Assistant to Associate to full). Salary is competitive with our entry-level clinical range. I am hoping to identify someone to start this summer in anticipation of being in place for the new school year.

The final candidate for this position must successfully complete a background check. Vanderbilt University has a strong institutional commitment to recruiting and retaining an academically and culturally diverse community of faculty. Minorities, women, individuals with disabilities, and members of other underrepresented groups, in particular, are encouraged to apply. Vanderbilt is an Equal Opportunity/Affirmative Action employer.


FAN 173.1 (First Amendment News) ROBOTICA EROTICA — Robotic Strippers Dance in Las Vegas

To suggest that the state can regulate robot dancers because they may stir erotic feelings is to say that the government may control the imagination. — Robert Corn-Revere

Dateline Pornotopia. The very thought of it would have made Doctor Freud blush, this new pleasure-principle frontier. As for Anthony Comstock, he would be in moral shock. What about Aldous Huxley? He would have said, “This is something right out of my Brave New World.” And most assuredly Professor Fred Schauer would view such eroticized acts as well beyond the First Amendment pale of protection. Then there is The Death of Discourse (1996), which predicted that the new technologies would serve the libido of future generations.

Well, make of it what you will, but it is nonetheless now a fact: Robotic strippers have come to Las Vegas at the 50th Consumer Electronics Show. Side-by-side with real dancers, the robotic strippers gyrate with erotic pulsation.  (Video here).


As reported by Kurt Wagner of CNBC: “The Sapphire Gentleman’s Club, a strip club right off Vegas’s main drag, paid to showcase the robots as a way to drum up interest from press and customers. . . . The robots were as advertised: They gyrated on a stripper pole to music from 50 Cent and Pharrell, with dollar bills scattered on the stage and the floor. A half-dozen human dancers, most of whom were dressed in tight, shiny robot costumes, repeatedly took pics in front of their metallic colleagues.”

Giles Walker (Islington Tribune)

Inventor: “They’re the work,” adds Wagner, “of an artist named Giles Walker, a 50-year-old Brit who describes himself as a scrap metal artist with a passion for building animatronic robots. One of his other projects, The Last Supper, features 13 robots interacting around a table.”

“Walker says he got the idea for pole-dancing robots more than seven years ago, when he noticed the rise of CCTV cameras being used as a way to surveil people in Britain for safety purposes, what he called ‘mechanical peeping Toms.’ He was inspired by the idea of voyeurism, or watching others for pleasure, and decided to try and turn the cameras into something sexy on their own.”

So, are these robots art? Well, they could be.  Again, consider Corn-Revere’s reply to this question: “If stationary sculptures are expressive art that the First Amendment protects – and they are – then moving sculptures can be as well.”

Question: what does this all portend for the future of eroticized expression and the First Amendment? For openers, consider Collins & Skover, Robotica: Speech Rights & Artifical Intelligence (Cambridge University Press, June 2018) —  Robotica Erotica may be the sequel.  Stay tuned!

Robot Lady (credit: Salon)

Nude Dancing: Assuming that erotic robotic dancing is covered under the First Amendment, might a state either ban or regulate such dancing? Recall in this regard the line of First Amendment cases ranging from Schad v. Mount Ephraim (1981) to Barnes v. Glen Theatre, Inc. (1991) to City of Renton v. Playtime Theatres, Inc. (1986) to Erie v. Pap’s A.M. (2000).

See also, David Hudson, “Nude Dancing,” First Amendment Online Library (“Nude dancing is a form of expressive conduct that when restricted, requires First Amendment review. However, the Supreme Court has upheld restrictions on totally nude dancing based on the secondary effects doctrine. Thus, in many cities and counties, dancers must don a modicum of clothing, arguably tempering their erotic messages.”)

Sex Toys?: Are such erotic bots akin to “sex toys” such that they might not qualify for any First Amendment protection? Consider Noah Feldman, Courts playing with the constitutionality of sex toys, Chicago Tribune, August 4, 2016 (“There’s no constitutional right to sex toys — yet. That’s according to a federal appeals court, which declined to strike down a Georgia city’s ordinance that prohibits selling sexual aids. But the three-judge panel invited the full court to rehear the case and strike down the law, stating that it was “sympathetic” to the claim but constrained by precedent. Eventually, the right to sex toys is likely to be accepted in all jurisdictions, as it already is in some. The basis will be the right to sexual intimacy recognized by the U.S. Supreme Court in the landmark 2003 case Lawrence v. Texas. And that raises a question about the evolving nature of constitutional rights: How did we get here? How does a decision framed around the autonomous right of two people to create an intimate sexual relationship come to cover access to toys? And should it?”) See Flanigan’s Enterprises v. City of Sandy Springs Georgia (11th Cir., en banc, Aug. 24, 2017).


Meet “Harmony” – the sex robot with a Scottish accent (considerably more “appealing” than her Las Vegas mechanical counterparts) (YouTube video here)

→ Aurora Snow, Sex Robots Are Here, and They’re Incredibly Lifelike. But Are They Dangerous?, The Daily Beast, July 22, 2017

→ Eric Lieberman, Sex Robots Are Here And Could Change Society Forever, The Libertarian Republic, July 17, 2017


FAN 173 (First Amendment News) Lawyer for Henry Holt & Michael Wolff Rebuffs Trump Cease & Desist Demands

Elizabeth A. McNamara (Davis Wright Tremaine)

In a categorical rebuff of the cease and desist demand sent by President Trump’s lawyer Charles J. Harder to Michael Wolff and his publisher Henry Holt, their lawyer Elizabeth A. McNamara, refused to halt publication of Fire and Fury: Inside the Trump White House or to issue any retraction or apology. Here are a few excerpts from the text of that three-page letter sent by Ms. McNamara to Mr. Harder:

  • No defamation identified: “Though your letter provides a basic summary of New York libel law, it stops short of identifying a single statement in the book that is factually false or defamatory.”
  • Accurate reporting“[A]s President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff’s book. We have no reason to doubt — and you letter provides no reason to change the conclusion — that Mr. Wolff’s book is an accurate report on events of vital public importance.”
  • President’s ‘bully pulpit’ & ability to respond: “We have no reason to doubt . . . that Mr. Wolff’s book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the ‘bully pulpit’ at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it.”
  • False light invasion of privacy: Re New York law of false light invasion of privacy claim: McNamara stressed that such a claim doesn’t  exist under New York law. Additionally, she noted that even if such a claim did exist in New York law: “it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.”
  • Re document preservation, Ms. McNamra stressed that her clients “will comply with any and all document preservation obligations that the law imposes on them.”
  • Charles J. Harder

    President’s duty to preserve documents: “[W]e must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regarding himself, his family members, their businesses, the Trump campaign, and his administration, and must ensure all appropriate measures to preserve such documents are in place,” McNamara wrote. “This would include any and all documents pertaining to any of the matters about which the book reports.”

  • “Should you pursue litigation against Henry Holt or Mr. Wolff, we are quite confident that documents related to the contents of the book in the possession of President Trump, his family members, his businesses, his campaign, and his administration will prove particularly relevant to our defense.”
  • No apologies: “My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”

→ Porter Anderson, Macmillan CEO Memo to Employees in Response to Trump’s Cease-and-Desist Letter, Publishing Perspectives, January 8, 2018

 →Robert Barnes, Trump faces uphill battle in trying to block critical book, legal experts say, Washington Post, January 4, 2018

 →FAN 99.2, Trump on Libel Law & Freedom of the Press, February 27, 2016


FAN 172 (First Amendment News) Books Issue — 15 New or Forthcoming Titles

Prof. Jerome Barron

It began nearly a quarter-century ago with the publication of First Amendment Law in a Nutshell. Now, that treasure trove of information appears yet again in “nutshell” form, this in its fifth edition. Compact in size, accessible in style, reliable in substance, and current up to Matal v. Tam (2017), this jem of a book is an indispensable resource for anyone interested in the First Amendment’s five freedoms.

Sadly, Jerome Barron’s friend and co-author Thomas Dienes died in 2013. “I did not have the joy the joy of working with him in this edition,” wrote Barron, “as I did in the first four editions of this book. I miss the benefit of his knowledge, insight and friendhip but I am grateful for the many years in which we worked on this and other books.”

Abstract: This book provides a short and readable source for individuals interested in constitutional law, First Amendment law, and communications law. It is divided into four parts: the history, methodology, and philosophical foundations of the First Amendment; topics such as First Amendment issues that arise in cable television and in regulating children’s access to the Internet; issues in First Amendment law such as the public forum doctrine, the compelled speech doctrine, and the free expression rights of government employees; and the text, history, and theory of the religion clauses, chronicling the ongoing battle in the Supreme Court between accommodationists and separationists. The Fifth Edition brings the book up to date with modern First Amendment jurisprudence, including a focus on racist and offensive speech, electoral spending, and other topics covered by recent Supreme Court cases and discussions.

Jerome Barron & C. Thomas Dienes, First Amendment Law in a Nutshell (West Academic Publishing, 5th ed., November 20, 2017)

Brand New: Fellion & Inglis on Literary Censorship

→ Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control (The British Library Publishing Division, September 28, 2017)

Brand New: Fronc on Movie Censorship

Jennifer Fronc, Monitoring the Movies: The Fight over Film Censorship in Early Twentieth-Century Urban America (University of Texas Press, November 15, 2017)

Brand New: More on Film Censorship

 Jememy Geltzer, Film Censorship in America: A State-by-State History (McFarland, November 3, 2017)

Brand New: Free Speech & Hollywood (1907-1927)

→ Jay Douglas Steinmetz, Beyond Free Speech and Propaganda: The Political Development of Hollywood, 1907–1927 (Lexington Books, November 24, 2017)

Coming this January: Easton on the Lawyer for The Masses

→ Eric B. Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech (University of Wisconsin Press, January 9, 2018)

Coming this January: New Life for the Press Clause?
Read More


FAN 171 (First Amendment News) Masterpiece Cakeshop Case: Oral Argument Summary & Resources’ Roundup

The tone and nature of Kennedy’s questions suggest that he is inclined to rule for the baker. But his ruling would effectively still be a win for gay rights laws. Kennedy can hold that CADA itself — like hundreds of other civil rights protections — remains completely valid. But this particular proceeding, he might conclude, was infected by anti-religious bias.– Craig Konnoth, Wash. Post, Dec. 6, 2017

It appears there will be a closely divided court, and the majority will try to craft a narrow compromise between equal dignity and religious belief., — Roberta Kaplan, The Advocate, Dec. 6, 2017 


The information below consists of a topically organized set of excerpts from oral arguments in the Masterpiece cake case that was argued in the Suprme Court yesterday. Following that is a roundroup of recent articles.  

David Mullins & Charlie Craig (Washington Blade photo by Michael Key)


  • Counsel for Petitioners: Kristen K. Waggoner
  • Counself for Amicus, supporting the Petitioners: Noel J. Francisco, Solicitor General, Dept. of Justice
  • Counsel for Private Respondents: David Cole, National ACLU
  • Counself for State Respondent: Frederick R. Yarger, Solicitor General, Denver, Colorado

Petitioner Jack Phillips (credit: Slate)

Excerpts from Oral Arguments 

Note: In the name of breveity, the excerpts that follow often leave out replies to the questions asked.

Premade Cakes 

Ginsburg: “What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?” (Trans.: pp. 4-5)

Kennedy: “[I]f you agree that it’s speech, then why can he not refuse to sell the cake that’s in the window according to Justice Ginsburg’s hypothetical?” (Trans.: p. 5)

Waggoner: “Well, in the context of if it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed. . . .” (Trans.: p. 6)

Kennedy: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake?”  (Trans.: p. 8)

Kristen K. Waggoner for Petitioners

Roberts: “There’s no -­there’s no compulsion of speech, but if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected.” (Trans. p. 9)

Kagan: “[A] couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it. Can he then say no? No cake?” (Trans. p. 38)

Sotomayor: “Let’s assume this couple did come in and wanted the rainbow cake. . . . And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding. . . . So what are the difference in treatment?”  (Trans. p. 61)

Yarger: “Justice Sotomayor, in that latter case, if that truly a product he wouldn’t sell to any other customer, he would not have to sell it to this customer. But if it’s a question of a cake he would sell to any other customer, he cannot say I have a very strong objection to interracial or interfaith marriages and I don’t want to send message about those — those events, and so I’m not going to sell it to you. That’s discrimination. It wouldn’t be appropriate under Colorado law, and it would be a First Amendment objection.” (Trans. p. 62)

Word Messages

Alito: “So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?” (Trans. p. 68)

Expressive Conduct

Alito: “Are the words on the cake expressive conduct or are they not speech?” (Trans. p. 80)

David Cole for Private Respondents 

Cole: “Your Honor, that is regulated by Colorado here is not the words on the cake. The conduct that -­that Colorado regulates is the sale by a business that opens itself to the public, invites everybody in, it’s — it’s regulating the conduct of refusing a transaction . . . to somebody because of who they are.” (Trans. p. 80)

Cole: “It doesn’t matter whether it’s speech or whether it’s not speech.” (Trans. p. 80)

Alito: “But you just said, and I understand Mr. Yarger’s position for Colorado to be the same, is that someone can be compelled to write particular words with which that person strongly disagrees.”(Trans. p. 81)

Cole: “If he has written the same words for others, and the only difference is the identity of the customer, yes, so, again, a baker could sincerely believe that saying happy birthday to a black family is different from saying happy birthday to a white family, but we would not say that, therefore, it is permissible for a baker to say: birthday cakes for whites only.” (Trans. p. 81)

Alito: “So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -­a vow — vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message. But you would say, well, it’s too bad because you’re a public accommodation. Am I right?” (Trans. p. 82)

No Request for Design

Cole: “There was no request for a design. There was no request for a message. He refused to sell them any wedding cake. And that’s identity-based discrimination. It is not a decision to refuse to put particular words on it.” (Trans. p. 77)

Messages Conveyed: Identity of Customer / Identity of Baker

Colorado Solicitor General Frederick R. Yager (credit: SCOTUSblog)

Gorsuch: “The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?” (Trans. p. 24)

Gorsuch: “[Assume we have a case involving the] Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?” (Trans. p. 84)

Cole: “No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.” (Trans. p. 75)

Hair Stylists & Makeup Artisits 

Kagan: “[What about a] air stylist?” (Trans. p. 12)

Waggoner: “Absolutely not. There’s no expression or protected speech in that kind of context . . . .” (Trans. p. 12)

Kagan:: “Why is there no speech in — in creating a wonderful hairdo?” (Trans. p. 12)

Kagan: “[What about] the makeup artist?”(Trans. p. 12)

Waggoner: ” No. . . .” (Trans. p. 12)

Kagan: : “It’s called an artist. It’s the makeup artist.” (Trans. p. 12)

Kagan: “[Y]ou have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?” (Trans. pp. 13-14)

Ginsburg: “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist.” (Trans. p. 26)

Francisco: “[T]hat’s, of course, the question that the Court — Court has to answer at the threshold of every Free Speech Case. Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service.” (Trans. p. 26)

Kennedy: “But the problem for you is that so many of these examples — and a photographer can be included — do involve speech. It means that there’s basically an ability to boycott gay marriages.” (Trans. pp. 26-27)

Architectural Design Read More


FAN 170 (First Amendment News) Masses case “reargued” in 2nd Circuit — Floyd Abrams vs Kathleen Sullivan

What follows is a short article by Professor Thomas Healy based on a “reargument” of Masses Publishing Co. v. Patten (2nd Cir., 1917), which overruled Judge Learned Hand’s district court opinion.

The event was hosted by the Second Circuit Court of Appeals in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association. 

Second Circuit Chief Judge Robert Katzmann introduced the event. Noted First Amendment lawyer Floyd Abrams appeared on behalf of Postmaster Patten and Kathleen Sullivan (former Stanford Law dean and seasoned appellate litigator) appeared on behalf of the Masses Publishing Co.

The case was argued before Circuit Judges 

Professor Healy, who attened the “reargument,” kindly offered this article for the benefit of FAN readers.  

→ A video of the oral arguments can be found here on the online First Amendment Library.

* * * * 

Prof. Thomas Healy (credit: Sean Sime)

If It Please the Court

“I’m the force of darkness tonight,” said Floyd Abrams in the lobby of the federal courthouse in Manhattan last week. It was an unfamiliar role for Abrams, the eminent First Amendment attorney who has spent his career defending the forces of enlightenment. But tonight, the script was flipped. Abrams was appearing for the government in a “reargument” of a landmark free speech case decided a hundred years ago, during World War I.

Judge Learned Hand

The post office had banned from the mail a radical magazine called The Masses because of its criticism of the war, and Judge Learned Hand had bravely ruled in the magazine’s favor. His colleagues on the appeals court had been less valiant, reversing his opinion and emboldening the Justice Department to arrest nearly two thousand people under the Espionage Act. Now, in a bit of historical reimagining, a panel of three current appeals judges had gathered to see if they could do better, and Abrams was given the task of arguing the government’s case.

His strategy quickly became clear. “I would urge the court to keep two things in mind,” he began. “First, we are at war – over five million soldiers have died and over forty million soldiers and civilians have died or been wounded.”

“Does the right of dissension become a casualty of war?” Judge Denny Chin broke in. “I wouldn’t say a casualty,” replied Abrams, “but that circumstance has to be taken into account.”

“What about the war on terror, where it’s been going on forever?” Chin asked, jumping ahead of the story. “If war became the rule and not the exception, we might as well just have one standard,” said Abrams. But this was World War I, he reminded the judges – a defined war, with defined enemies. “There were enormous casualties occurring, enormous turmoil on the streets.”

Abrams is eighty-one years old, with a fringe of white hair and an easy, avuncular style. He doesn’t spar with judges or overwhelm them with facts. He chats casually with them until they are lulled into a state of acquiescence. It was happening already.

“Isn’t the law in your favor here in 1917?” asked Judge Pierre Leval.

“I’m ready to sit down,” Abrams offered.

“You’re here to persuade us,” Leval responded.

“I’m starting out ahead of the game, I think.”

His adversary, Kathleen Sullivan, had some catching up to do. The former dean of Stanford Law School, Sullivan tried to turn the discussion from war to democracy. That had been Hand’s approach in his Masses opinion. Conceding the government’s power to prosecute the war, he had argued that the Espionage Act should be read narrowly in light of “the normal assumption of democratic government that the suppression of hostile criticism does not turn upon the justice of its substance or the decency and propriety of its temper.” Hand had risked his reputation in writing those words, and he fell into despair when the appeals court reversed him. Later, he blamed the decision for his failure to reach the Supreme Court.

Floyd Abrams & Kathleen Sullivan in front of bust of Judge Learned Hand.

Sullivan was here to vindicate him. The courtroom was filled with free speech lawyers, scholars, and enthusiasts. A bust of Hand looked on. “We do not in our First Amendment tradition allow people to be punished or silenced because they have brought the government into odium,” Sullivan told the judges.

“What about during war?” Chin asked, picking up where Abrams had left off.

“I don’t question the power of Congress to limit activities, including speech, that threaten the war effort,” Sullivan replied. But The Masses had been blocked from the mails for publishing cartoons and poems that posed no imminent danger. “I should win easily,” she added.

Afterward, the judges reflected on the significance of the Masses case and the expansion of free speech rights over the past century. No decision was issued, but Judge Leval seemed to speak for the court when he expressed some doubt about Hand’s ruling. “It’s a very sly opinion,” he noted. “Hand knew perfectly well there was no precedent supporting it.”

Sullivan was gracious in imaginary defeat. She walked over to Abrams and extended her hand, which he kissed. Soon he was surrounded by admirers, who marveled at his ability to switch sides so effortlessly and adopt the position of his nemesis.

“How did it feel?” an observer wanted to know.

“It was liberating.”

↓ ↓ ↓ ↓

→ Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

→ Related Forthcoming Book: Eric Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech

Related book: Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America (2013)


FAN 169.2 (First Amendment News) Court grants cert. in three free speech cases — five such cases this term

As listed below, the Roberts Court has rendered rulings in 44 free-speech First Amendment cases. And its eagerness to decide such cases continues. Earlier today, the Court granted cert. in three more free speech cases, this in addition to the Masterpiece Cakeshop case, which will be argued on December 5th, and Janus v. American Federation of State, Municipal and County EmployeesThe three new cases are:

  1.  Minnesota Voters Alliance v. Mansky (Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment. // lead counsel for Petitioner: Wencong Fa)
  2. National Institute of Family and Life Advocates v. Becerra (Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the 14th Amendment. // lead counsel for Petitioner: David A. Cortman)
  3. Lozman v. City of Riviera Beach, Florida (Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law. //  lead counsel for Petitioner: Pamela S. Karlan)

Comment: Generally speaking, each Court has its constitutional law centerpiece.

  • for the Fuller Court it was Substanive Due Process
  • for the Hughes Court it was the Commerce Clause
  • for the Vinson Court it was, among other things, the Communist-era cases
  • for the Warren Court it was Equal Protection
  • for the Burger Court it was the Criminal Justice counter-revolution
  • for the Rehnquist Court it was Federalism, and now
  • for the Roberts Court it is free-speech freedom under the First Amendment.

Roberts Court Free- Speech First Amendment Cases (from FIRE’s First Amendment online library):

  1. Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)
  2. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006)
  3. Garcetti v. Ceballos, 547 U.S. 410 (2006
  4. Randall v. Sorrell, 548 U.S. 230 (2006
  5. Beard v. Banks, 548 U.S. 521 (2006)
  6. Davenport v. Washington Educ. Association, 551 U.S. 177 (2007)
  7. Tennessee Secondary School Athletic Association v. Brentwood Academy, 551 U.S. 291 (2007)
  8. E.C. v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)
  9. Morse et al. v. Frederick, 551 U.S. 393 (2007)
  10. United States v. Williams, 553 U.S. 285 (2008)
  11. Davis v. Federal Election Commission, 554 U.S. 724 (2008)
  12. New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)
  13. Pleasant Grove City, UT, et al v. Summum, 555 U.S. 460 (2009)
  14. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)
  15. Ysursa v. Pocatello Educational Association, 555 U.S. 353 (2009)
  16. Locke v. Karass, 555 U.S. 207 (2009)
  17. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
  18. United States v. Stevens, 559 U.S. 460 (2010)
  19. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
  20. Christian Legal Society v. Martinez, 561 U.S. 661 (2010)
  21. Milavetz, Gallop, & Milavetz v. United States, 559 U.S. 229 (2010)
  22. Doe v. Reed, 561 U.S. 186 (2010)
  23. Snyder v. Phelps, 562 U.S. 443 (2011)
  24. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
  25. Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)
  26. Borough of Duryea v. Guarnieri, 564 U.S. 379 (201
  27. Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011)
  28. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)
  29. Reichle v. Howards, 132 S. Ct. 2088 (2012)
  30. Golan v. Holder, 132 S. Ct. 873 (2012)
  31. Knox v. Service Employees International Union, 132 S. Ct. 2277 (2012)
  32. United States v. Alvarez, 132 S. Ct. 2537 (2012)
  33. Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013)
  34. McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014)
  35. Wood v. Moss, 134 S. Ct. 2056 (2014)
  36. Lane v. Franks, 134 S. Ct. 2369 (2014)
  37. Harris v. Quinn, 134 S. Ct. 2618 (2014)
  38. McCullen v. Coakley, 134 S. Ct. 2518 (2014)
  39. Williams–Yulee v. The Florida Bar 135 S. Ct. 1656 (2015)
  40. Walker v. Sons of Confederate Veterans (2015)
  41. Reed v. Town of Gilbert 135 S. Ct. 2218 (2015)
  42. Expressions Hair Design v. Schneiderman581 U.S. ___ (2017)
  43. Matal v. Tam582 U.S. ___ (2017)
  44. Packingham v. North Carolina, 582 U.S. ___ (2017)

FAN 169 (First Amendment News) NAACP & other civil rights groups file brief in same-sex wedding cake case

A decision from this Court in favor of Masterpiece would require reasoning that would be readily deployed to trample the rights of the most vulnerable people in our society by excusing discrimination based upon race, national origin, or any other protected category, and would roll back the substantial strides this country has made in eradicating discrimination in our public life and economy. This Court should not open a new avenue for discrimination by commercial businesses—one that is inconsistent with this Court’s precedents and the principle that states may protect equal access to publicly available goods and services for all its residents. 

So states the amicus brief filed by the NAACP and other civil rights groups in Masterpiece Cakeshop v. Colorado Civil Rights CommissionWhat began as a religious rights case, and then into a free speech case, may well turn into a civil rights race case and more. Simply consider the opening lines of the brief filed by the Lawyers’ Committee for Civil Rights Under Law, Asian American Legal Defense and Education Fund, Center for Constitutional Rights, Color of Change, The Leadership Conference on Civil and Human Rights, National Action Network, National Association for the Advancement of Colored People, National Urban League, and the Southern Poverty Law Center:

“[P]etitioners’ proposed free speech exception to anti-discrimination public accommodation laws could decimate those laws’ critical protections for African Americans, including the growing number of African Americans who identify as lesbian, gay, bisexual, transgender (LGBT), and other minority populations that have been subjected to a history of discrimination.”

“Despite the advances our country has made in eradicating segregation and other forms of invidious discrimination, African Americans, including LGBT African Americans who experience discrimination at the intersection of race and sexual orientation or gender identity, continue to suffer from structural and pervasive discrimination, as evidenced by the recent increase in hate crimes across the country. Discrimination infects the marketplace as well, where minority consumers continue to receive worse treatment and experience disparate access to goods and services as a result of business owners’ biased attitudes. Today, public accommodation laws remain vital by providing relief when consumers experience discrimination.”

The sumamry of the argument closes with the following: “Public accommodation laws strengthen our country by ensuring our economy is an inclusive one where all people regardless of background, identity, or belief can participate free of discrimination. This Court must see Masterpiece’s arguments for what they are—a request for permission to lawfully discriminate against minorities. Business owners’ religious and speech interests must not trump the rights of disenfranchised individuals to be free from discrimination. Masterpiece’s proposed exception to public accommodation laws would potentially apply to any business and would gut this Court’s well-established precedent and nullify long standing state, federal, and local public accommodation laws, causing a dramatic rollback of hard-won civil rights protections. . . .”

Ilana H. Eisenstein (counsel of record)

“The unprecedented carve-outs proposed by Masterpiece and the federal government could apply well beyond the wedding context to other businesses that are also arguably engaged in expressive activities, such as culinary arts, interior design and architecture rms, fashion boutiques, beauty salons, and barber shops, who would prefer not to associate with racial, ethnic, or other underrepresented minorities. And even beyond artistic commercial enterprises, a free-speech exception could potentially exempt a broad range of businesses that claim free-speech objections from serving particular customer groups.”

The counsel of record in the case is Ilana H. Eisenstein. From 2014 through 2017, Ms. Eisenstein served as an Assistant to the Solicitor General, U.S. Department of Justice. In that capacity, she prepared government petitions and briefs for filing in the Supreme Court, and advised the Solicitor General regarding federal appellate litigation. She has argued five cases and briefed over 75 others in the high Court.

Knight First Amendment Institute: Digital Rights, Federal Courts, and First Amendment Experts Endorse Suit against President Trump’s Twitter Blocking

NEW YORK (November 7, 2017) – The Electronic Frontier Foundation, a group of First Amendment scholars, and a group of federal courts scholars filed amicus briefs yesterday in support of a lawsuit filed by the Knight First Amendment Institute at Columbia University contending that President Trump violated the Constitution by blocking seven people from his Twitter account because of their viewpoints. The three amicus briefs support the Knight Institute’s Friday evening filing in the lawsuit, in which the Institute argued that the president’s Twitter account is subject to the First Amendment and the court has the authority to stop the president and his aides from violating First Amendment rights.

EFF’s amicus brief contends that social media platforms — and government officials’ social media accounts in particular — play a significant role in democratic discourse and the democratic process, and therefore must be regulated by the First Amendment. Social media is also used to communicate vital public safety information, and punishing someone by denying them access can have dire consequences. Read the brief and a summary of the arguments.

“Governmental use of social media platforms to communicate to and with the public, and allow the public to communicate with each other, is pervasive. It is seen all across the country, at every level of government. It is now the rule of democratic engagement, not the exception,” said EFF Civil Liberties Director David Greene. “The First Amendment prohibits the exclusion of individuals from these forums based on their viewpoint. President Trump’s blocking of people on Twitter because he doesn’t like their views infringes on their right to receive public messages from government and participate in the democratic process.”

Prof. Stephen Vladeck

A group of eight federal-courts scholars joined an amicus brief prepared by Brian Burgess and Andrew Kim of Goodwin Proctor with Professor Steve Vladeck of the University of Texas Law School. The brief contends that the court has the authority to enjoin the president for his official conduct, and that the ruling in the case Mississippi v. Johnson does not prohibit the court from doing so, in light of more recent Supreme Court cases. Read the brief.

“Our brief offers a modest contribution by highlighting how, contrary to the government’s argument, federal courts can — and periodically do — issue coercive relief directly against a sitting president,” said Vladeck. “The government relies for the contrary view on language taken out of context from a 150-year-old Supreme Court decision, but as we demonstrate, that language, even read for all it’s worth, has been overtaken by subsequent events — and for good reason.”

Prof. Joshua Geltzer

The final amicus brief was filed by Georgetown Law Center’s Institute for Constitutional Advocacy and Protection on behalf of seven First Amendment scholars, including Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe. ICAP’s brief argues that, by fostering a dialogue on @realDonaldTrump that includes official statements of government policy, responses by other Twitter users, and replies by the president to those responses, the president has created a digital-age public forum under the First Amendment, which prohibits viewpoint discrimination such as blocking critics. Read the brief and a summary of the arguments.

“This case is about applying established First Amendment principles to emerging technologies,” said ICAP’s Executive Director and Visiting Professor of Law Joshua Geltzer. “When the government creates a space for public discussion and debate, whether in a physical or virtual setting, it creates a public forum. The Constitution then bars the government from silencing those who question it and giving voice only to those who praise it.”

For more information, go here.

Related: Adam Liptak, Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers, New York Times, Nov. 6, 2017

Controversy over Lenny Bruce play heats up at Brandeis University 

       Brandeis University poster for 2016 program on Lenny Bruce

Following a flood of complaints, Brandeis University has scrapped plans for the performance of a controversial play on its campus accused of being critical of the Black Lives Matter movement. — The College Fix, Nov. 1, 2017

Michael Weller told Boston public radio station WBUR-FM that he was “personally heartbroken” over the decision and called the handling of his play by the university department “dangerous and corrosive.” Playbill, Nov. 7, 2017

The Comedian & the University: The papers and audio files of Lenny Bruce, the ribald comedian who changed the face of American comedy, are housed at Brandeis University (his obscenity trial transcripts are available on FIRE’s online First Amendment Library).  The Lenny Bruce Collection came to Brandies in 2014 thanks to a grant from the Hugh M. Hefner Foundation. In late October of 2016, Brandeis held a symposium to mark the occasion with Kitty Bruce (the comedian’s daughter), Christie Henfner (CEO of Playboy Enterprises and former Brandeis University Trustee), and Lewis Black (the famed comedian) as featured speakers.

Assumption of the RiskOf course, by agreeing to house the Lenny Bruce papers and recordings, Brandeis University necessarily assumed the risk that comes with such a responsibility — i.e., the propsect of offending some people.

Playright Michael Weller

Were the faculty and administration of Brandeis University prepared to assumed that risk? That question came to the forefront when the playright Michael Weller attempted to show a Lenny Bruce play (“Buyer Beware”) at Brandeis, his alma mater.

The Plot’s the Thing (from The Brandeis Hoot): “Sitting outside a dorm, the main character, Ron, repeats what he hears on his MP3 as he listens to audio recordings of Lenny Bruce, a white stand-up comedian who drew national attention in the 1950s and 60s for his obscenity-laced performances and unyielding commitment to free speech. Ron found the audio in the Lenny Bruce archives in the Brandeis library. The supposed quote contains eight uses of the n-word and four other slurs which are also repeated.

“‘Imagine if we just kept saying these words over and over again, sooner or later they’d become meaningless noise,’ says Ron quoting Bruce, in between chains of slurs. A black student overhears Ron’s quotation of Lenny Bruce and then takes to Facebook to express himself.”

“Ron plans a comedy routine in the style of Lenny Bruce but does not intend to use Bruce’s exact language. The Brandeis administration threatens him with academic probation in hopes he will cancel his performance so that student protests do not fall on the same night that a wealthy alum, who has criticized student protests including Ford Hall 2015, visits campus.”

“At the climax of the play Ron performs and students protest. . . . In the play, his comedy performance is a direct challenge to the Brandeis administration. ‘If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?’ he says.”

The Controversy 

This from Sopan Deb at the New York Times: “Brandeis University canceled an upcoming play about the comedian Lenny Bruce after some students and faculty expressed outrage about its content, the school announced on Monday.”

“The play, called “Buyer Beware,” was written by Michael Weller, an alumnus of the school and a playwright with a body of work that includes 1971’s “Moonchildren.” “Buyer Beware” was supposed to go on stage this month, but according to a statement from Brandeis, faculty started raising objections last summer.”

“Theater faculty members, the statement said, ‘felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming.’ . . .”

→ More from The Brandeis Hoot: “Rather than put on a performance of ‘Buyer Beware,’ the School of Creative Arts will offer a course in the spring ‘devoted to the challenging issues Michael’s work evokes.'”

Brandeis University’s statement related to the Creative Arts Award and ‘Buyer Beware’

“In January, Brandeis University will proudly present Michael Weller ’65 with the Creative Arts Award to celebrate his significant body of work, which includes more than 40 works for the theater, including “Moonchildren” and “Loose Ends,” and such films as “Ragtime” and “Hair.” Mr. Weller will add this award to an already impressive list of honors, including an Academy Award nomination, an NAACP Outstanding Contribution Award and a Drama Desk Award.”

“Last year, Mr. Weller was hosted by the theater department on campus, where he conducted research in the Lenny Bruce archives and engaged with students, faculty, administration, staff and maintenance personnel. He drew on this research to draft a script for a new play titled “Buyer Beware,” named after Lenny Bruce’s celebrated recording. Originally, the play was part of the theater department’s performance schedule for this November.”

“After receiving a draft script of ‘Buyer Beware’ in early July, theater faculty members considered the challenging issues it raised. They felt that more time was needed to produce the play appropriately, and that its performance on campus should go hand-in-hand with robust educational programming. In early September, Mr. Weller and faculty discussed possible dates in February for the production of the play. Mr. Weller was also informed about the creative arts faculty’s decision to design a team-taught course around the play and other provocative works of art in the spring semester, which would accompany the production of the play. However, it was the playwright’s sense, in his own words, “that rehearsals of the play, and growing sentiment among some students in the theater department, might not be conducive to the creative atmosphere desired for a premiere presentation of a new work,” and so Mr. Weller made the decision to produce it elsewhere in a professional venue, rather than at Brandeis.    

“While the play will not be performed on campus because of Mr. Weller’s decision to produce it professionally elsewhere, a course will be offered this spring and is currently being designed by faculty. It will allow Brandeis faculty to do what they do best — engage in rigorous educational work — by devoting a full semester to analyzing and openly discussing provocative works of art that may cause discomfort, including the legacy of Lenny Bruce. The course will explore a broad range of artistic genres, including visual art, theater, film, music and literature, with the help of experts and visiting artists as well as Brandeis faculty. . . .”

“The university will be honored to celebrate Mr. Weller’s artistic achievements at the Creative Arts Award ceremony on January 23rd.”

 Knight First Amendment Institute Posts Exchanges on “Who Pays for the First Amendment?’”

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