Tagged: First Amendment

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FAN 115 (First Amendment News) Profile: Jameel Jaffer to Head New Knight First Amendment Institute

Jameel Jaffer

Jameel Jaffer

“Columbia University President Lee C. Bollinger announced his appointment of Jameel Jaffer, deputy legal director at the ACLU, as founding director of the Knight First Amendment Institute at Columbia University. Last [May], Columbia and the John S. and James L. Knight Foundation announced the creation of the new institute which will workthrough litigation, research and public advocacyto preserve and expand the freedoms of expression and the press in the digital age.”

Columbia News also reported that “since he joined the staff of the ACLU in 2002, Jaffer has litigated some of the most significant post-9/11 cases relating to national security and civil liberties, among them: constitutional challenges to gag orders imposed under the USA Patriot Act, surveillance conducted by the National Security Agency, the viewpoint-based denial of visas to foreign scholars, and the sealing of judicial opinions issued by the Foreign Intelligence Surveillance Court. He has argued cases at all levels of the federal court system, including in the U.S. Supreme Court, and has testified before Congress about a variety of topics relating to national security and civil liberties. Jaffer is also one of the nation’s leading Freedom of Information Act attorneys, having litigated landmark cases that resulted in the publication of crucial documents about the U.S. government’s counter-terrorism policies.”

Select Litigation 

  • Jaffer represented the Respondents in Clapper v. Amnesty International USA (2013) (briefs here & here)
  • In 2004, “he successfully litigated a Freedom of Information challenge that forced the administration of former president George W. Bush to release the ‘torture memos,’ which authorized the use of brutal interrogation and torture techniques against detainees during the War on Terror.”
  • ACLU v. Holder (4th Cir., 2010) (Appellants’ brief) (“The False Claims Act requires the sealing of fundamental court documents alleging matters of vital public importance, sometimes for many years. The statute penalizes relators for discussing facts that are true and of public interest. Approximately one thousand cases remain under seal, and serious allegations that the federal government has been defrauded of billions of dollars continue to be hidden from the public eye. Thus has a venerable statute enacted to expose fraud against the government been employed as a means of suppressing public debate about critical national issues, in plain contravention of the First Amendment.”)
  • ACLU v. NSA, 467 F.3d 590 (2006)

Select Publications, Congressional Testimony & Interviews

 Jameel Jaffer was born in Kingston, Ontario. He is a graduate of Williams College and received his law degree from Harvard Law School (he was an editor on the Harvard Law Review). Jaffer clerked for Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and for Beverley McLachlin, Chief Justice of Canada.

ACLU Contests Constitutionality of Computer Fraud & Abuse Act

This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. — ACLU Complaint 

The American Civil Liberties Union filed a lawsuit in federal court challenging the constitutionality of an anti-hacking law. The group argues that the law (the Computer Fraud and Abuse Act) inhibits academics and others from gathering data to study whether online algorithms might be discriminatory. The ACLU claims the law v violates First Amendment freedoms.

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The ACLU complaint “challenges the constitutionality of a provision of the Computer Fraud and Abuse Act, a federal statute that prohibits and chills academics, researchers, and journalists from testing for discrimination on the internet. This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. Without online audit testing, policymakers and the American public will have no way to ensure that the civil rights laws continue to protect individuals from discrimination in the twenty-first century. . .”

“The Plaintiffs’ research and testing activities, which include posing as online users of different races and recording the information they receive, constitute speech and expressive activity that is protected by the First Amendment, and that is prohibited by the Challenged Provision. The overbroad and indeterminate nature of the Challenged Provision prohibits and chills a range of speech and expressive activity protected by the First Amendment, because it prevents Plaintiffs and other individuals from conducting robust research on issues of public concern when websites choose to proscribe such activity.”

→ ACLU Attorneys for Plaintiffs: Esha Bhandari, Rachel Goodman, Arthur B. Spitzer & Scott Michelman

 David McCabe, ACLU sues feds over anti-hacking law, The Hill, June 29, 2016

7th Circuit Holds City Ban on Bus Ads Inapplicable to Women’s Health Care Ad Read More

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FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

Civil liberties without Steve Shapiro is like the Rolling Stones without Jagger. — Kathleen Sullivan

Steve Shapiro

          Steven Shapiro

He is a giant in his world, the world of civil liberties. For some two decades he has been the man at the helm of defending freedom on various fronts ranging from free speech to NSA surveillance and more, much more. His journey began 40 years ago as a staff counsel to the New York Civil Liberties Union.

He is Steven R. Shapiro.

Sometime this fall Shapiro will step down as the Legal Director of the American Civil Liberties Union. He has long been the one ultimately responsible for the ACLU’s entire legal program. Equally significant, Shapiro has been most closely involved with the ACLU’s Supreme Court docket. Ever since 1987, he helped to shape, edit, and occasionally write every ACLU brief to the Supreme Court.

  • Law Clerk (1975-1976 ) Judge J. Edward Lumbard, Court of Appeals, Second Circuit
  • J.D. (1975), Harvard Law School, magna cum laude.
  • B.A. (1972), Columbia College

Since 1995 Shapiro has served as an adjunct professor at Columbia Law School, where he has taught “Civil Liberties & the Response to Terrorism,” and “Free Speech and the Internet.”

 Shapiro is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Steven Shapiro, “The Roberts Court and the Future of Civil Liberties,” Houston Law Center, April 20, 2012

Natalie Singer, “Freedom Fighter, A conversation with Steven R. Shapiro ’75

SCOTUSblog on Camera: Steven R. Shapiro (complete six-part series here)

The Measure of the Man: What Others Say

I invited a few of those who know Steve Shapiro and are familiar with his work to offer a few comments. Before proceeding to their full comments, I selected a set of words drawn from them that capture the measure of the man: Here are those seven words:

“thoughtful” 

“principled”

 “unflappable”

 “effective” 

“remarkable” 

“honest”

“extraordinary”

Nadine Strossen: “Steve Shapiro has been a supremely thoughtful, lucid, persuasive advocate of First Amendment rights and other civil liberties, both orally and in writing. Whether he is serving as Counsel of Record on a Supreme Court brief or giving a sound-bite for the national media, he always presents even the most complex, controversial positions clearly, colorfully, and compellingly.”

EVAN E. PARKER/ THE TIMES Steven Shapiro, legal director of the American Civil Liberties Union, speaks Thursday at Valparaiso University's School of Law about the legal aspects of the United States Patriot Act.

   [credit: Evan E. Parker/ The Times]

Robert Corn-Revere: “Through his long career in defending civil liberties, and First Amendment rights in particular, Steve Shapiro demonstrated that protecting individual rights often requires championing the right to express ideas you abhor, but that doing so is necessary to protect basic freedoms. For those of us who had the privilege of working with him, his principled advocacy will be greatly missed.”

Burt Neuborne: “Steve Shapiro set the standard for all once and future ACLU Legal Directors. I know because I didn’t reach his standard. Steve has a precise and uncannily quick analytic mind that breaks complex fact patterns down into controllable issues, together with a keen strategic sense that accurately separates a good academic argument from an argument having a chance in the real world. Couple Steve’s extraordinary legal ability with his careful approach to administration, unflappable good humor, patience, and deeply principled commitment to the ACLU, and you have the key to his enormous success. He leaves office with the respect and affection of hundreds of lawyers whose work he aided, and with the knowledge that he performed one of the nation’s most important legal tasks with brilliance and humanity.”

Erwin Chemerinsky: “Steve Shapiro has done a truly spectacular job as Legal Director of the ACLU. The ACLU legal staff has grown tremendously and likewise benefitted greatly under his leadership and has made a huge difference in so many areas of law. He has been especially effective in directing the ACLU’s presence in the Supreme Court.”

Kathleen Sullivan: “Over his remarkable tenure Steve’s energy, intellect, and suppleness enabled the ACLU to navigate profound changes in the landscape of security, privacy, and freedom. It has always been a joy to work with him.”

Paul M. Smith: “It has been my privilege and pleasure to work with Steve Shapiro on a large number of projects over the years. For a quarter century, he has been on the job at the ACLU displaying a breadth of knowledge and a depth of wisdom that has been extraordinary.”

Arthur Spitzer: “At a recent ACLU Nationwide Staff Conference where Steve Shapiro’s forthcoming retirement was announced, the event planners handed out cardboard fans that said, ‘We’re all fans of Steve.’ The humor may not have been brilliantly original, but I think no one disagreed with the sentiment. Steve is a terrific lawyer, often seeing the deep problems in a case before anyone else and then seeing the way around them. But I think his even greater value to the ACLU has been his ability to be an honest broker among all the competing viewpoints within the ACLU. As far as I’ve been able to perceive (although from afar, at the local affiliate in DC), everyone feels that Steve understands and appreciates his or her concerns, weighs them fairly, and takes them into account, even if not ultimately agreeing. That will be a hard act to follow.”

UnknownOne Measure of His Work: Free Expression Cases

Below is a list of all the free speech cases (not all First Amendment cases) in the Supreme Court where the ACLU filed or signed onto a brief in the last ten terms. The direct cases are marked by an asterisk; all the others are amicus briefs.

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:

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Court Denies Review in Sign Case Read More

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FAN (First Amendment News, Special Series #2) FBI to Continue Working with Hackers to Fight Terrorism . . . & Crime?

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The F.B.I. defended its hiring of a third party to break into an iPhone used by a gunman in last year’s San Bernardino, Calif., mass shooting, telling some skeptical lawmakers on Tuesday that it needed to join with partners in the rarefied world of for-profit hackers as technology companies increasingly resist their demands for consumer information. — New York Times, April 19, 2016

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This is the second FAN installment concerning the ongoing controversy over national security and cell-phone privacy. As with the first installment, the legal focus here is on First Amendment issues. It is against that backdrop that the Newseum Institute in Washington, D.C. will host a public event on June 15, 2016.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

Information concerning that upcoming event is set out below, but first a few news items.

Recent News Items

“FBI Director James Comey said the U.S. paid more than he will make in salary over the rest of his term to secure a hacking tool to break into a mobile phone used by a dead terrorist in the San Bernardino . . . . The law enforcement agency paid ‘more than I will make in the remainder of this job, which is 7 years and 4 months,’ Comey said . . . at the Aspen Security Forum in London. . . . Comey’s pay this year is $185,100, according to federal salary tables, indicating the tool cost the agency more than $1.3 million. FBI directors are appointed to 10-year terms.”

“[Ms. Amy Hess, the Federal Bureau of Investigation’s executive assistant director for science and technology,] did not answer directly when asked about whether there were ethical issues in using third-party hackers but said the bureau needed to review its operation ‘to make sure that we identify the risks and benefits.’ The F.B.I. has been unwilling to say whom it paid to demonstrate a way around the iPhone’s internal defenses, or how much, and it has not shown Apple the technique.”

“Bruce Sewell, Apple’s general counsel, told a House commerce oversight subcommittee that the company already works with law enforcement regularly and would help develop the FBI’s capability to decrypt technology itself, but won’t open ‘back doors’ to its iPhones due to the security risk that would pose to all users. . . . What the FBI wants, Hess said, is ‘that when we present an order, signed by an independent federal judge, that (tech companies) comply with that order and provide us with the information in readable form.’ How they do that is up to them, she said.”

“The leaders of the Senate Intelligence Committee have introduced a bill that would mandate those receiving a court order in an encryption case to provide “intelligible information or data” or the “technical means to get it” — in other words, a key to unlock secured data.  “I call it a ‘follow the rule of law bill,’ because that’s what it does: It says nobody’s exempt from a court order issued by a judge on the bench,’ said Committee Chairman Richard Burr, a North Carolina Republican. The top Democrat on the committee, California’s Dianne Feinstein, is a co-sponsor.”

Senate Bill Introduced

Here are a few excerpts from the proposed Senate Bill:

(1) GENERAL. Notwithstanding any other provision of law and except as provided in paragraph 7 (2), a covered entity that receives a court order from a government for information or data shall —

(A) provide such information or data to such government in an intelligible format; or

(B) provide such technical assistance as is necessary to obtain such information or data in an intelligible format or to achieve the purpose of the court order.

(2) SCOPE OF REQUIREMENT. A covered entity that receives a court order referred to in par graph (1)(A) shall be responsible only for providing data in an intelligible format if such data has been made unintelligible by a feature, product, or service owned, controlled, created, or provided, by the covered entity or by a third party on behalf of the covered entity.

(3) COMPENSATION FOR TECHNICAL ASSISTANCE. . . .

(b) DESIGN LIMITATIONS. Nothing in this Act shall be construed to authorize any government officer to require or prohibit any specific design or operating system to be adopted by any covered entity.

(4) DEFINITIONS . . . .

Non-Terrorist Crimes & Demands for Cell-Phone Access

Upcoming: Newseum Institute Moot Court Event Read More

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How an Anarchist Changed Oliver Wendell Holmes’s Future

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Seattle, WA: Last evening I joined David Skover to see (yet again) Stephen Sondheim‘s dark musical, Assassins. Afterwards, I turned to David and said: “Well, not all of those assassinations proved for the worst. Holmes, after all, owed a debt to the anarchist who murdered President McKinley.” So here is a page from that story, the true one that is.  

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Leon Czolgosz

Leon Czolgosz

September 6, 1901 is one of the most important dates in American constitutional history, though few think of it as such. On that day Leon Czolgosz attempted to assassinate President William McKinley at the Pan-American Exposition in Buffalo, New York. Though the President would live several more days, the two shots the anarchist fired ultimately killed McKinley (he died on September 14th) and thereby put in motion a string of events that led to Oliver Wendell Holmes, Jr. becoming the fifty-eighth Justice on the Supreme Court.

But for the death of the President, the seat to be vacated by Justice Horace Gray would not have gone to then Chief Justice Holmes of the Massachusetts Supreme Judicial Court. No — President McKinley had other plans. Here’s what those plans were:

As the summer of 1901 wound down, it became apparent to McKinley and others that Justice Gray was ill and was likely to retire soon. So the President turned to his friend John Davis Long, then Secretary of the Navy, for advice. Though Long had nominated Holmes to the Massachusetts bench when he was governor, he did not recommend him for the U.S. Supreme Court. Instead, Long urged the president to select Alfred Hemenway, his law partner.  And Hemenway was prepared to accept the position if and when offered.

As it turned out, however, Horace’s delay in retiring combined with McKinley’s assassination changed everything. Thereafter, Henry Cabot Lodge, a U.S. senator from Massachusetts and one of Theodore Roosevelt’s close friends, recommend Holmes for Gray’s seat when the ailing Justice stepped down in July 1902. Roosevelt acted on Lodge’s suggestion and nominated Holmes. By December the Senate confirmed him, unanimously.

As ironic as it was, Oliver Wendell Holmes owed his justiceship to a crazed anarchist.

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FAN 102.1 (First Amendment News) Laurence Tribe Petitions Court in Defamation Case

The case is Scholz v. DelpThe issue raised in it is whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action. The state court judgment below was in favor the First Amendment claim.

Harvard Law Professor Laurence Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe begins his brief my stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

Professor Laurence Tribe

Professor Laurence Tribe

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

The the three arguments advanced by Professor Tribe in his cert. petition are:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closes his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

 Response due April 4, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Justice v. Hosemann 
  3. Cressman v. Thompson
  4. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

→ The Court’s next Conference is on March 25, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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FAN 99.6 (First Amendment News) Floyd Abrams on Campus Censorship (Then & Now) & Related Topics

On March 1, 2016, Floyd Abrams gave the Levitt Lecture at the University of Iowa School of Law. Below are a few excerpts from his remarks:

Floyd Abrams

Floyd Abrams

Years Ago: In London with Justice Scalia & Nadine Strossen (then President of the ACLU): “We started talking about some First Amendment cases, particularly Hill v. Colorado, a ruling affirming the constitutionality of significant limitations on speech in areas near facilities in which abortions were performed. All three of us agreed on how terrible the majority opinion of Justice Stevens was and how enlightened Justice Scalia’s dissent was. (In those days, although not more recently, the ACLU, which Nadine then headed, took a strong First Amendment stand against such laws.) Justice Scalia, one could tell, enjoyed the conversation, and at one point leaned back, drink in hand, cigar in mouth, and said ‘you know, I’m not really bad about the First Amendment.’”

Campus Censorship in the 1950s: Reading [about] examples [of censorship on college campuses today], I couldn’t help but compare them to the time when I entered Cornell University more — as you will undoubted be surprised to hear — than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus — a real loss, I can say in retrospect — but very much the ethos of life in America on and off campus in the long ago 1950s.”

Unknown

Free Speech on College Campuses Today: “Just about a year ago, I gave a speech in Philadelphia at Temple University in which I maintained that the single greatest threat to freedom of speech in the country was on college campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, even disturbing. Nothing that has occurred in the last year has led me to change that view. Part of the problem stems from the behavior—misbehavior might be the better word–of college and university administrations. The indispensable organization called FIRE, which tracks the behavior of colleges and universities with respect to free speech on campus, has just published its list of the 10 worst colleges for free speech in 2016. I held my breath as I read it, wondering if your great university would make the list in time for me to comment on it in this talk.”

The New Censors: “[T]oday there are new censors who seek to place new limits on what may be said on campus. And I’m sorry to say they’re students. . . . Most campus activism in public universities is protected by First Amendment and is indispensable if society is to change for the better. But too often in recent days, students have overstepped the bounds of activism into demanding a sort of de facto censorship. And too often, those desires of those students are accommodated by all-too-compliant university administrators that are willing to bend to their demands rather than risk the turmoil or worse that could result in their not doing so.”

Mr. Trump & the First Amendment: “[I]t’s worth remembering that some of [Mr. Trump’s] rhetoric would not only be controversial in other democratic nations, as it certainly is here, but illegal. In Belgium, a member of Parliament was convicted of a crime for saying, ‘Stop the Islamification of Belgium’ and making similar statements. In England, a man was convicted for carrying a poster that said, ‘Islam out of Britain-Protect the British People.’ Whatever you think of more than one not dissimilar statement of Mr. Trump in this campaign – and, in case you’re interested, I think they are appalling – the First Amendment protects them.” (See also Abrams & Collins: “Confronting Trump — An American Debate Censorship Cannot Stop,” Concurring Opinions, Dec. 18, 2015).

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The Evils of Caretaker Tyranny – Reflections on Catherine Ross’ “Lessons in Censorship”

It is the mass psychology of our times: victimization. It is ubiquitous. It is an affliction of desire, one suffered by anyone who dons a victim’s badge – liberals and conservatives, men and women alike. It is fiction masquerading as fact. It feigns suffering in the hope of attaining sympathy. It is the triumph of desired perception over verifiable reason. It is group-thought, which means it bears little relation to actual thinking. And it trades in a portrayal of the individual not as self-determined but rather as group-manipulated.

“Victims” can be abled or disabled, religious or non-religious, poor or well to do, young or old, or those on the ideological Left or Right. They are all “survivors”; they all seek our sympathy. True to the supposed affliction, the resulting sympathy is either disingenuous or delusional, if only because what prompted it was either disingenuous or delusional.

This trend towards victimization diminishes our capacity to feel real sympathy for real victims. Yes, rape is real; true, violence is deplorable; and, of course, actual threats are never to be tolerated. Any civilized society  worthy of the name must roundly condemn such acts. But when the demands for our sympathy or outrage become unthinking, when what prompts them is political ideology, something is lost. That something is authenticity, which alone can summon the true habits of the heart. Being sensitive, however, does not mean being sensational. We do not need to close our minds in order to open our hearts.

caretaker-85772758The mantra of victimization invites caretaker tyranny. In such a culture, these caretakers demand protection against the forces of evil, not real evil but one fabricated to suit the mindset of helplessness. In a world populated by the helpless, the forces of good must take action. For example, at Brown University a “safe space” was created to comfort any college student victimized by the trauma of a campus debate on sexual assault. But safe houses are not enough; there must be sanctions. Rules must be set in place to assure an atmosphere of compulsory calm. Tongues must be silenced; books must be cleansed; and events must be scrubbed to prevent anything that might trigger any kind of offense. George Will recently tagged it “sensitivity censorship.” True, but it is censorship in the service of a false sensitivity, one divorced from reality.

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41Sa-0L-7ML._SX329_BO1,204,203,200_And that is where the First Amendment comes into play, which brings me to Catherine RossLessons in Censorship: How Schools & Courts Subvert Students First Amendment Rights (Harvard University Press, 2015). It is a sobering book . . . for those who wish to be sober. It is a mind-opening book . . . for those willing to be open-minded. It is a revealing book about judicially sanctioned censorship . . . for those willing to listen. It is a plan for instructive action . . . for those willing to act. And it is a call to liberty . . . for those wishing to be free.

When reading this well-argued and well-researched book, what struck me most was this: When it comes to student speech, the conservatism of the Burger, Rehnquist and Roberts Courts helped to inform the censorship championed by the cheerleaders of victimization. Ever since the Warren Court’s 1969 Tinker ruling, the cause of student free speech has been a losing one. Merely witness the adverse rulings in Bethel School District v. Fraser (Burger Court: 1986), Hazelwood School District v. Kuhlmeier (Rehnquist Court: 1988), and Morse v. Frederick (Roberts Court: 2007), and all of the countless lower cases (documented in Ross’ book) that have followed suit.

Point of Clarification: The cases just mentioned all involved high school students, whereas my earlier reference to the Brown University mentality involved college students. And while courts have regularly sanctioned censorship at the secondary level, censorship at the college level has been routinely disapproved by lower courts thanks to litigation brought by FIRE, the ACLU, the Student Press Law Center, and the Center for Campus Free Speech.

That said, the thread that weaves its way through the fabric of both lines of cases is this: The Supreme Court’s post-Tinker rulings – save for Rosenberger v. University of Virginia (a 1995 religious funding college campus case) – suggest two things. First, the authority of school officials to regulate student speech is vast. Second, any asserted justification for censorship will be deemed credible. Thus understood, the governing norm for school administrators is one spawned by what might be called protective paternalism (or maternalism, if you prefer). Such paters protect everyone; they are the caretakers of our time. Such paternalism, rooted in the secondary school cases, has carried over into the college realm and informs much of the administrative thinking there. The mindset of these school principles has become that of college administrators. In the process, that same kind of thinking shapes the minds of the impressionable young.

What is lost in the mix is education in what it means to live in a society governed by the principle of free speech. Schools, as Professor Ross reminds us, are “training grounds for citizenship,” places where the value of free speech may be taught as a “counterweight to the voices demanding censorship of ideas that might upset some people.” Such education is neither education in victimization nor education in subservience. Rather it is education in toleration and liberty. To be sure, real abuses of freedom betray real freedom. Civility is important. Still, as Ross counsels us time and again, liberty must not be held in perpetual pause by school officials either enamored with their power or charmed by the idea of being caretakers of pseudo victims.

Turn the pages of Lessons in Censorship and you will discover what it means for students to think freely and how courts have fashioned baseless arguments designed to squelch such thinking. Open this book and you will be introduced to the kind of nuance (buttressed by considerable research and documentation) that grasps “the importance of keeping discipline for student expression within constitutional limits.” Consider the points made in this book concerning insults, hate speech, and bullying, and you will walk away with a more informed idea of what kinds of speech do real harm (and thus may be regulated) versus the kinds of speech that do not (and should thus be tolerated). Take heed of what is set forth in this book about school officials extending their disciplinary powers off campus so as to become would-be parents, and you will fear for freedom. There is, to be sure, more, but that is for you, the reader, to discover.

Lessons in Censorship is a book that should be read and discussed by school officials at all levels of education. It is a work that should be poured over by school board officials and lawyers who represent school districts and college campuses. And its message should carry over into the memoranda and briefs that lawyers file to inform judges. It is too important a book to be left to academics unless they use it as a teaching tool in educating students about the importance of free-speech liberty.

To return to my beginning: The cult of victimization, so prevalent on our college campuses, is grounded in a system of secondary education alienated from the principles of free speech. It takes leave from the the very principles that teach self-reliance, toleration, and the importance to meet, expose, and contest every brand of bigotry designed to diminish our humanity.

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FAN 83 (First Amendment News) Paul Smith Files Cert. Petition in Right of Publicity Case

It would be dangerous for persons trained only in the law to constitute themselves the final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. — Justice HolmesBleistein v. Donaldson Lithographing Co. (1903)

If there is a legal principle that unites these rulings [concerning the right of publicity], it is hard to discern. — Adam Liptak (2013)

 Paul M. Smith: Most people know him as the man who successfully argued Lawrence v. Texas (2003), which overruled Bowers v. HardwickIn the First Amendment world he is known as the lawyer who successfully argued Brown v. Entertainment Merchants Association (2011). There is, of course, more to the vita of Mr. Smith, the man at Jenner & Block who chairs the Appellate and Supreme Court Practice there, and co-chairs the Media and First Amendment, and Election Law and Redistricting Practices. So you get the idea — he’s a seasoned and highly skilled appellate lawyer.

Paul M. Smith

Paul M. Smith

In case you missed it, Mr. Smith’s latest case is Electronic Arts, Inc. v. Davis, in which he filed a cert petition in the Supreme Court last September. The issue in the case is “whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The controversy stemmed from the depiction of  former NF players in the “Madden NFL” video game franchise.

9th Circuit Ruling: In an opinion by Judge Raymond Fisher writing for a three-judge panel, the Ninth Circuit denied the First Amendment claim. “EA has not shown,” wrote Judge Fisher, “that its unauthorized use of former players’ likenesses in the Madden NFL video game series qualifies for First Amendment protection under the transformative use defense, the public interest defense, the Rogers test or the incidental use defense. Accordingly, we affirm the district court’s denial of EA’s motion to strike.”

The Cert Petition 

“This case involves the collision of the First Amendment and the state-law ‘right-of-publicity’ tort, an issue that has engendered conflict and disarray among the lower courts to the detriment of free expression. The right of publicity is a modern tort, first recognized in 1953” in the case of Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Thus does Mr. Smith begin his brief and his discussion of the “modern tort” that gave rise to the First Amendment defenses raised in EAI. 

 Conflict in the Circuits

The Supreme Court has not addressed the question, and decisions from the lower courts are a conflicting mix of balancing tests and frameworks borrowed from other areas of free-speech doctrine. — Judge Diane Sykes (2014)

As argued in the Petitioner’s cert. petition, the Supreme Court’s “only contribution came nearly forty years ago in Zacchini v. Scripps-Howard Broadcasting Co., (1977), in which the Court held [by a 5-4 vote] that the First Amendment did not bar a right-of-publicity claim against a television station that broadcast an entertainer’s entire human-cannonball act. . . . Thus, Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full.” On that score, and as discussed by Mr. Smith, there is a conflict among the lower courts as how to analyze such cases.

“The lower courts’ various and conflicting constitutional tests,” Smith maintains, “have resulted in numerous irreconcilable outcomes.” For example, in his brief he identifies the following conflicts:

  1. Transformative-Use Test: Used by the Third and Ninth Circuits.
  2. Rejection of Transformation-Use Test: The Second, Fifth, Sixth, and Eleventh Circuits, along with the Florida and Kentucky Supreme Courts, have “held that the First Amendment protects non-commercial speech depicting well-known people even if the depiction is not transformed.” (See below re Rogers test).
  3. Case-Specific Balancing Test: Used by the Eight and Tenth Circuits.
  4. Predominate Purpose Test: Used by the Missouri Supreme Court.

Suggested Approach

The test used in Rogers v. Grimaldi (2nd Cir., 1989), Smith argues, “allows the right-of-publicity tort only when the speaker has used a depiction of, or reference to, a celebrity to sell something — either by falsely claiming a celebrity commercial endorsement or by including a celebrity image in a publication gratuitously, just to attract attention. Confined to these circumstances, the right of publicity does not raise constitutional concerns. Speech that falsely claims a commercial endorsement is akin to the category of fraudulent speech that the government has long regulated without any First Amendment concerns. And the gratuitous use of a celebrity’s image to attract attention, unrelated to any expressive content in the work, likewise falls outside First Amendment protection altogether. Thus confined, the right-of- publicity tort raises little constitutional concern.”

The brief closes with this admonition: “Unless and until this Court intervenes, a great deal of valuable and protected expression will be chilled.”

Related Articles, Events & Blogs

 → Rebecca Tushnet, “A Mask that Eats into the Face: Images and the Right of Publicity,” Columbia Journal of Law & the Arts (2015)

 Eugene Volokh,” Freedom of Speech and theRight of Publicity,” 40 Houston Law Review 903 (2003)

 Rothman’s Roadmap to the Right of Publicity: a 50-state interactive survey of right of publicity laws, plus breaking news.

→ On October 17, 2015, the Abrams Institute hosted a workshop entitled “Right of Publicity: Closed Workshop.” Participatants included Floyd Abrams, Paul M. Smith, Rebecca Tushnet, Jennifer Rothman, Mark Lemley, Jack M. Balkin, Bruce Keller, Stacey Dogan, and Lee Levine.  The following issues were addressed:

  1. Current state of right of publicity law;
  2. Introduction to the current relationship of right of publicity to copyright, trademark and privacy principles;
  3. First Amendment theories relevant to thinking about right of publicity;
  4. The nature of the “right”;
  5. How is the “right” to be reconciled with the First Amendment?;
  6. Relationship to Copyright law; Relationship to Trademark law; and
  7. Practical issues

11th Circuit finds Georgia State psychologists have no First Amendment right to complain Read More

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FAN 81.1 (First Amendment News) Floyd Abrams, “Beyond the Reach of Government”

Floyd Abrams

Floyd Abrams

The following remarks were delivered at Yale Law School on Saturday, October 24, 2015 on the occasion of Floyd Abrams receiving the Yale Law School Association Award of Merit. Previous recipients include Supreme Court Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Secretary Hillary Rodham Clinton. The remarks below are posted with Mr. Abrams’ permission.  

* * * * 

My ticket of admission to this party today appears to be the First Amendment so I thought I’d distill all my learning on the subject into a five minute presentation. Draw what conclusions you choose from my presumption in doing so – the notion of a five-minute tour of the First Amendment may be a first in and of itself – but here we go.

First, we’re lucky, really lucky, to have it. Not just because it’s a good thing that we have a First Amendment, although of course it is, but because we came so perilously close to not having it at all. It’s worth recalling that the states that met in Philadelphia in 1789 to draft a Constitution unanimously voted not to have a bill of rights at all. Why, Alexander Hamilton wrote in Federalist 84, “declare that things should not be done which there is no power to do”? “Why,” he asked, “should it be said that liberty of the press should not be restrained when no power is given by which such restrictions may be imposed?” Only the unyielding position by Jefferson and others that, in Jefferson’s words, “a bill of rights is what the people are entitled to against every government on earth” led to the adoption of any bill of rights, let alone one with a First Amendment.

imagesSecond, for all of its 18th century lineage, the First Amendment may be best understood – I know Justice Scalia would not approve – as a 20th century, even second half of the 20th century, document. It wasn’t seriously cited in any number of Supreme Court opinions as a bulwark against government overreach until the enduring Holmes and Brandeis opinions (often in dissent) in the 1920’s; it wasn’t applied to the states until the 1920’s; and the first federal law held to be unconstitutional based on the First Amendment did not occur until 1965.

Third, the First Amendment is negative in nature. It says “Congress shall make no law” on purpose. It doesn’t promise freedom of the press; it promises that the government will not abridge it. That leaves lots of room for interpretation. But it does not permit the conclusion – sorry about this, Justice Breyer – that “first and foremost, the First Amendment seeks to facilitate self-government” by “encouraging the exchange of information and ideas which are necessary for citizens themselves to shape “public opinion” No.

The First Amendment certainly facilitates self-government. It certainly helps in the shaping of public opinion. But first and foremost, it does so by putting free speech and free press, as Madison put it, “beyond the reach of this Government.”

Over half a century ago, the essayist Norman Cousins put it this way: It is not “that democracy lacks affirmative values. The affirmative values are many and varied, but they all rest on a solid bedrock of restraints upon government.”

Fourth, any bill of rights and any First Amendment is only meaningful if the government it purports to limit is prepared to obey it – to treat it as binding law. Consider this alternative to the First Amendment: “Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and of association.” Not bad, right? But that’s to be found in Article 67 of the Constitution of North Korea, one of the world’s truly despotic, murderous and freedom-destroying nations. Its asserted protection of free speech is a lie, nothing less, since, it is rooted neither in any concept of law, let alone individual liberty.

To return to my beginning: We are a lucky people in so many ways. I am lucky and so are you to have attended this great institution. And we’re all lucky to live in a nation in which freedom of speech is so rightly revered.

© Floyd Abrams, 2015