Category: First Amendment

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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 

* * * *

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

Read More

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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

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34.4 (First Amendment News) Freedom of Expression Scholars Conference — Call for Papers

abrams-logoThe Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School invite applications for the third annual Freedom of Expression Scholars Conference.  The conference will be held on May 2-3, 2015, at Yale Law School.

 The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy.  The past two conferences were great successes, with many interesting conversations, dozens of papers presented, and upwards of 50 scholars attending. Diversity of views welcome.

The conference offers participants an opportunity to receive substantive feedback through group discussion. Unlike a traditional conference, authors do not give formal presentations of their work.   Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants.  This format permits substantive and lively discussion of ideas and writings that may be inchoate or not yet fully developed.

Because of the format of the conference, participants will be expected to read and be prepared to discuss at least one paper per session, and to attend the entire conference.  In the past, there have typically been eight sessions, running from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening for those already arrived in New Haven.

 Participation in the conference is by invitation only, but we welcome paper submissions–and applications to participate as a discussant–from a wide range of scholars.  Please feel free to share this call for submissions with any colleagues that may be interested.

Titles and abstracts of papers should be submitted electronically to jonathan.manes@yale.edu no later than February 20, 2015.

→ Those interested in participating as discussants or participants without submitting a paper should also contact jonathan.manes@yale.edu by February 20, 2015.

 Workshop versions of accepted papers will be due on April 3, 2014 so that they can be circulated to discussants and conference participants in advance.

The conference announcement is online here.  Information about prior conferences, including attendees and the titles of workshopped papers, is available here and here.  As before, we are expecting that scholars will ask their home institutions to cover travel expenses.

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FAN 34.2 (First Amendment News) — Court agrees to hear judicial campaign solicitation case

The case is Williams-Yulee v. The Florida Bar. This morning the Court agreed to review the case.

Lanell Williams-Yulee

Lanell Williams-Yulee

The issue is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

petition for certiorari was filed by Andrew PincusCharles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

 →See YouTube video of TV political ad here.

State Judicial Elections

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Andrew Pincus, counsel for Petitioner

Andrew Pincus, counsel for Petitioner

Conflicts in Lower Courts 

↓ On the one hand, the Third and Seventh Circuits along with the high courts of Arkansas,Oregon, and now Florida have ruled that such solicitation bars do not run afoul of the First Amendment.

↑ On the other hand, the SixthEighthNinth, and Eleventh Circuits have ruled otherwise. (Note the irony: Florida is in the Eleventh Circuit.)

Differing Rules for Sitting Judges vs Judicial Candidates? In light of the above, counsel for the Petitioner notes: “It is not in fact certain that that the Seventh Circuit or the supreme courts of Arkansas and Oregon would align with the Florida Supreme Court in this case. Unlike here [those cases] involved solicitations by sitting judges. In the Ninth Circuit’s view, the constitutional balance may differ in cases involving incumbent candidates as compared with ‘non-judge candidates.’ [citations omitted] But we are skeptical of any constitutional distinction between incumbents and non-incumbents, which would subject competitors in a single election to different First Amendment rules.”

First Amendment Arguments Read More