Author: Ronald K.L. Collins

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FAN 38 (First Amendment News) Abrams Institute to host conference on Net Neutrality

abrams-logoOn November 3rd, the Floyd Abrams Institute for Freedom of Expression will host a conference entitled Net Neutrality: From Debate to Policy Decisions. The conference will take place at the Century Association located at 7 West 43rd Street in New York City. The event starts with breakfast at 7:30 a.m. and ends promptly at 9:20 a.m. Here is a description:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality. 

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Panel speakers

 Registration

A fee of $35 per person will be charged to cover the cost of the continental breakfast. Go here to register. The registration deadline is Thursday, October 30th.

 CLE Credit 

One and one half (1.5) CLE credit hours in Professional Practice (corporate) will be available for this program, which is transitional and non-transitional in nature. Preregistration is required for CLE credit.

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 Related Articles

→ Upcoming AALS Panel Discussion

Petition to Watch 

At its Conference on October 31, 2014, the Court will consider the following free speech petition:

Issues: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the city can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.
(Hat tip to Maureen Johnston)
Lithwick takes swipe at Roberts Court
Dahlia Lithwick

Dahlia Lithwick

In a new essay titled “The Courts’ Baffling New Math,” the ever feisty Dahlia Lithwick, the Supreme Court commentator for Slate, argues:

“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”

Later in the same essay, Lithwick adds:

“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”

Three Replies Read More

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

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FAN 37 (First Amendment News) McCutcheon case produces flood of scholarly commentary — 41 works!

UPDATED: 10-24-14

Before proceeding to the scholarly output on McCutcheon, here is where we stand this Term on First Amendment free expression cases:

Review Granted

  1. Elonis v. United States (to be argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar
  3. Reed v. Town of Gilbert

Review Pending

  1. Pregnancy Care Center of New York v. City of New York 
  2. Vermont Right to Life Committee, et al v. Sorrell
  3. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission

Review Denied

  1. City of Indianapolis, Indiana v. Annex Books, Inc.
  2. Ashley Furniture Industries, Inc. v. United States 
  3. Mehanna v. United States 

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Erin Murphy arguing in McCutcheon case

Erin Murphy arguing in McCutcheon case

The decision in McCutcheon v. Federal Election Commission (2014) is barley six months old and it has already produced an abundance of scholarly commentary, including books, symposia, and articles — no fewer than 40 such works. And all of this before the revered Harvard Law Review issue dedicated to the last Supreme Court term finds its way to print. Ditto for the equally acclaimed Supreme Court Review. How times have changed. The days of waiting are over; we live in a wired era. That’s the good news. The bad news, of course, is: who can possibly begin to read all of this?

That said, and for better or worse, below is a list of books (e-books and print ones) and articles and essays (in online companions and print journals) that either discuss McCutcheon in full or in part (e.g. Zephyr Teachout’s book) or issues very much related to the decision (e.g, Robert Post’s book). All were published after the decision came down on April 2, 2014. Browse them and see how many catch your eye.

5 Books

36 Scholarly Articles or Blog Posts  Read More

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FAN 36.3 (First Amendment News) A street named Carlin

Cardinal Carlin

Cardinal Carlin

UPDATED

Tomorrow New York City will rename a street to honor the late George Carlin, the famed comedian and inspiration for FCC v. Pacifica (1978), the infamous First Amendment case sustaining a broadcast ban on “7 dirty words.”

Although “George Carlin Way” will begin at Amsterdam and West 121st Street, because of construction the ceremony tomorrow will be one block away at Morningside Drive and West 121st Street.

 → This from Howard Wasserman: “The named block is actually not the block on which Carlin grew up, because the church there (where Carlin went to school) objected; the compromise was to move it across to Amsterdam Avenue.” [Source: go here]

  The dedication ceremony will begin at 1:00 PM.

Current line-up of speakers

The following speakers have yet to confirm:

220px-Seven_Dirty_Words_WBAIEvening Event

Tomorrow night at 7:30 PM, at Carolines on Broadway, there will be a very special night of laughter to pay tribute to the dean of counterculture comedians and to celebrate his newly minted status as a man of the streets. (I will be in NYC and plan to be at Carolines.)

Colin Quinn will host, with performances by Ted Alexandro, Kevin Bartini, Eddie Brill, Jim Norton, and special surprise guests.

For details, go here.

→ Hat tip to Josh Wheeler 

For a memorable passage from Justice William Brennan:

I find the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.

→ Related News Item: November 4, 2014 marks the 50th anniversary of Lenny Bruce’s New York obscenity conviction, for which he was posthumously pardoned on December 23, 2003.

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FAN 36.2 (First Amendment News) Corn-Revere on the FCC & Redskins Controversy

Robert Corn-Revere

Robert Corn-Revere

In case you missed it, yesterday Robert Corn-Revere had an op-ed in the Wall Street Journal. The piece was titled, “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.”

Here is the petition to the Federal Communications Commission, the one that gave rise to the FCC controversy.

 Here is how Mr. Corn-Revere began his WSJ op-ed:

“However you may feel about the name of the National Football League franchise in Washington, D.C., do we really want the Federal Communications Commission to step into the Redskins controversy as the nation’s culture police?”

“That’s what George Washington University law professor John Banzhaf III is seeking by asking the FCC to deny the broadcast license of WWXX, the FM radio station in Washington licensed to team owner Dan Snyder. The petition, filed in September, asks the FCC to yank the broadcast license because the station “deliberately, repeatedly, and unnecessarily broadcasts the word ‘R*dskins’ during most of its broadcast day.”

“That’s right, in lieu of the team name, the petition uses ‘R*dskins.'”

“This is a publicity stunt, not a serious legal argument. It is well beyond the FCC’s statutory or constitutional authority to prohibit speech merely because some find it offensive. But the idea gained some political traction after a Sept. 30 meeting when several FCC commissioners said they would consider the issue. Such consideration should not take long if the FCC is serious about following the law.”

Corn-Revere, former chief counsel to former FCC Chairman James Quello, then proceeded to lay out his case as to why Professor Banzhaf’s petition should be denied. In the process, Corn-Revere drew on FCC precedents and experience with regulations of this general type. In the end, he predicted:

“Without even getting into the frailties of the petition’s legal arguments, it doesn’t take a seer to predict what would happen if the FCC started canceling broadcast licenses because some people in the audience may be offended by something they had heard or seen. It would be a national version of college ‘speech codes,’ which have devolved into an offended-ness sweepstakes.

“There is no doubt about the sincerity of those who object to the name Washington Redskins. But asking the FCC to silence broadcasters who disagree with them is not the solution.”

Note: Professor Banzhaf has accepted my invitation to respond. I will post it as soon as i can. Stay tuned. 

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FAN 36.1 (First Amendment News) Skover to Speak on McCutcheon Case

By way of a shameless plug for my coauthor:

INFLUENTIAL VOICES  

David Skover

David Skover

Seattle University School of Law
is proud to present
Professor David Skover

SCOTUS Books-in-Brief: When Money Speaks: A New Venture in E-Publishing

Wednesday, October 29
Room C6, Sullivan Hall, 4:30 p.m.
Reception to follow

The event is open to all, but RSVPs are requested.

Professor Skover will speak about the creation of the SCOTUS Books-in-Brief imprint and his latest coauthored book, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

When Money Speaks analyzes the controversial U.S. Supreme Court decision in McCutcheon v. FEC, which struck aggregate limits on contributions to political candidates. It has been called “a brilliant discussion of campaign finance in America” and “the best book on the topic.”

The SCOTUS Books-in-Brief series provides readers with reliable, informative, and engaging narrative accounts of significant Supreme Court rulings shortly after they come down.

Introduction by Dean Annette E. Clark 

 

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FAN 36 (First Amendment News) Forgotten Free Press Advocates — The Women Lawyers in NYT v. Sullivan

These three women were active in ACLU First Amendment work during those early years and had an enormously powerful and lasting impact on the law we enjoy today. — Joel Gora (longtime ACLU lawyer)

The news follows, but before it does I want to say a few words about three remarkable women and their roles in New York Times Co. v. Sullivan (1964). They are:

  1. Harriet Pilpel (1911-1991)
  2. Nanette Dembitz (1913-1989)
  3. Nancy F. Wechsler (1916-2009)
Harriet Fleischl Pilpel

Harriet Fleischl Pilpel

Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in the Sullivan case. Beyond the single sentence they receive in the Supreme Court Reports and in Anthony Lewis’ Make No Law: The Sullivan Case and the First Amendment (1991), the women are virtually unknown players in the First Amendment world. As their respective stories reveal, there is more, much more, to be said about the people in the landmark case and how it came to be so. (BTW: Doris Wechsler — the wife of Herbert Wechsler, the attorney for the Times — helped write the merits brief in Sullivan and is listed on it. She sat in the lawyers’ section when Sullivan was argued in the Supreme Court.)

Recently, I had occasion to say a few words about some of those people in connection with a conference hosted by the University of Oregon School of Journalism and Communications and the Law School, a conference to commemorate the 50th anniversary of Sullivan. That is how I came upon the ACLU brief filed in Sullivan.

The lead attorneys for the ACLU and the New York Civil Liberties Union were Edward S. Greenbaum (of the famed Greenbaum, Wolff & Ernst firm) and Harriet Pilpel. Melvin L. Wulf, Nanette Dembitz, and Nancy Wechsler were of counsel.

Here is how things began: Mel Wulf, the ACLU attorney, contacted Greenbaum and asked if his firm would file a brief on behalf of ACLU. Greenbaum agreed and, as Wulf recalls, Nancy Wechsler wrote the first draft along with help from Harriet Pilpel. Nanette Dembitz added her own comments, whereafter Wulf did the final read and edit. Greenbaum, the lead attorney, had little or no meaningful input on the brief. The ACLU brief was 37 pages long (plus appendix) and made three basic arguments:

  1. Alabama’s exercise of its long-arm jurisdiction over the Petitioners violated the First Amendment and the due process clause of the Fourteenth Amendment
  2. Alabama’s defamation law as applied to criticism of public officials on matters of public concern violated the First Amendment as applied to the states by way of the Fourteenth Amendment
  3. The trial judge denied the Petitioners due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment

Those arguments were teased in a variety of ways — e.g., Alabama’s use of its defamation laws was analogous to the Alien and Sedition acts; there was no reasonable basis for presuming malice or damages; and the trial was so rife with racial prejudice against the Petitioners as to deny them equal protection. More could be said about the brief, but for now let me leave it there so as to return to my sketch of the three women who contributed to the ACLU brief.

 Harriet Pilpel was an accomplished public-interest advocate with sterling credentials: A graduate of Vassar College and Columbia Law School (1936, second in her class), she went to wotk for the firm of Greenbaum, Wolf & Ernst. Later, she served as general counsel for both the ACLU (1979-1986) and Planned Parenthood. In 1982 she joined the law firm of Weil, Gotshal & Manges. During her career, she participated in 27 cases that came before the Supreme Court. She argued on behalf of Planned Parenthood in Poe v. Ulman (1961). She wrote yet other briefs for Planned Parenthood in cases such as Griswod v. Connecticut (1964, with Nancy Wechsler), Roe v. Wade (1973, with Nancy Wechsler), and Carey v. Population Services International (1977). Pilpel was also on the briefs for the Appellees in Harris v. McRae (1980).

In the free speech context, Pilpel was co-counsel with Edward Greenbaum in Farmers Union v. WDAY (1959), a statutory interpretation defamation case.

Harriet was very helpful in supporting my initial run for the ACLU National Board of Directors (a very competitive process), and she also debated Catharine MacKinnon about pornography at an ACLU Biennial Conference.Nadine Strossen

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FAN 35.2 (First Amendment News) — Former NSA Director counsels against going after James Risen

Hey, I knew we were playing up against the line.

. . . I don’t understand the necessity to pursue Jim.

– General Michael Hayden

On Sunday October 12th, James Risen of the New York Times appeared on 60 Minutes. He was interviewed by Lesley Stahl. Below are some selected excerpts from that installment of the CBS news program.

Stahl:  Will you divulge your source?

James Risen on 60 Minutes with Lesley Stahl

James Risen on 60 Minutes with Lesley Stahl

Risen:  No, never; I’m not going to talk.

Stahl: Sometimes you get yourself in trouble.

Risen: [Chuckles] Yea, the government has been after me for a while now. . . .

Stahl: What was your first reaction when you realized that the New York Times was onto the NSA story?

General Michael Hayden: First reaction was this is not good news. . . . [The NSA surveillance practices] were warrantless but not unwarranted. It would have been irresponsible for NSA not to have done this in the immediate aftermath of the attacks of 9-11. . . . Hey, I knew we were playing up against the line. . . . Jim is going to go to jail, why? Because Jim wants to protect his sources. . . .

Stahl: What kept you from walking out [when your editors initially held back your story]? Read More

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FAN 35.1 (First Amendment News) — Creative Freedom & the First Amendment

On Wednesday, October 22, Freedom House and the Motion Picture Association of America, in support of Free Speech Week, will host a discussion on Creative Freedom and the First Amendment. The event will be held in Washington, D.C.

image001Panelists

Using current on-screen examples, the discussion will focus on how movies and television shows in the United States are powerful instruments that inform and enlighten us, advancing debates on crucial social and cultural issues. The creative freedom the First Amendment protects is fundamental to the ability of storytellers to tell these stories through television and film in America.

 Free Speech Week is an annual, non-partisan national event celebrating the value of freedom of speech.

→ For more information about the Creative Freedom event, contact Ivory Zorich at ivory_zorich@mpaa.org

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FAN 35 (First Amendment News) Clear & Present Danger in the states — Holmes’s Legacy

Suppose that a code were made and expressed in language sanctioned by the assent of the courts.  – Oliver Wendell Holmes (1870)

Judge Oliver Wendell Holmes, Jr.

Judge Oliver Wendell Holmes

46 States & 209 statutes 

Incredibly, commentators have long overlooked one of Holmes’s greatest contributions to American law, namely his contribution to state statutory law. Today, 46 states have codified, in one form or another, Holmes’s clear-and-present-danger formula for either civil or criminal liability. This codification, found in 209 state statutes, is not limited to criminal advocacy cases. State lawmakers have tapped Holmes’s famous formula for any variety of purposes, including but not limited to the following categories of regulation:

  • Parental rights
  • Food and drug safety
  • Witness protection
  • Bullying in schools
  • Gun safety
  • Therapist and counselor privilege
  • Building safety
  • Environmental reports
  • Banking law
  • Involuntary commitment
  • State-municipal loans
  • Treatment of the elderly

Because this body of statutory does not concern free speech cases involving criminal advocacy, Schenck and its progeny leading to and beyond Brandenburg v. Ohio need not govern the interpretative meaning of the clear-and-present-danger formula. In other words, state courts are largely free, consistent with other legal constraints, to give such statutes whatever interpretative gloss they wish.

Re Freedom of Expression

Of the 209 state laws that currently employ the clear-and-present-danger language, 40 have done so in matters relating to freedom of expression and/or assembly. Examples of such laws include the following:

  • Regulation of the content of student newspapers
  • Regulation of speech advocating the overthrow of the government
  • Regulation of speech related to the incitement of riots
  • Criminal contempt with respect to publication of court proceedings
  • Regulation of criminal syndicalism
  • Regulation of reading materials of the mentally ill
  • Regulation of free assembly
  • Regulation of expression in public places where alcohol is served
  • Regulation of prison inmate correspondence

422 State Court Opinions Read More