Category: General Law

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FAN 34.1 (First Amendment News) — 1-A Salons and Floyd Abrams Institute join to host dialogues on free expression

PRESS RELEASE

abrams-logoThe First Amendment Salon is pleased to announce that it has formed an association with the Floyd Abrams Institute for Free Expression at Yale Law School.

The Abrams Institute is administered by the Yale Information Society Project, directed by Yale Law Professor Jack Balkin. The Institute is both practical and scholarly. It includes a clinic for Yale Law students to engage in litigation, draft model legislation, and give advice to lawmakers and policy makers on issues of media freedom and informational access. It promotes scholarship and law reform on emerging questions concerning both traditional and new media. And it holds scholarly conferences and events at Yale on various First Amendment issues.

“I’m delighted,” Floyd Abrams commented, “that the Abrams Institute and the First Amendment Salon will be working together to explore areas in which there is continuing conflict as to the degree and nature of First Amendment protection. The First Amendment Salon has already played a major role in doing so and I’m hopeful that together we can  increase still more the impact of debates about the First Amendment in today’s American society.”

The co-chairs of the Salon are Ronald Collins (University of Washington Law School), Lee Levine (Levine Sullivan Koch & Schulz) and David Skover (Seattle University Law School). The members of its advisory board are:

Unknown“The idea behind the salon,” Levine explained, “is to engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion about some of the key free speech issues of our times. We thus welcome this unique association with such a distinguished Institute committed to the same mission.”

The Salon hosts a regular series of no-charge, 90-minute discussions concerning contemporary Supreme Court cases, books, articles, legal briefs, memoranda or timely topics. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York as well as at the Abrams Institute in New Haven. The salons are privately video cast to the respective venues so as to allow for an exchange of views by people in different locales.

“Part of our mission is to bridge the gap between First Amendment legal scholars and practitioners. This association represents an important step in that direction,” Ron Collins said.

Previous featured participants in First Amendment Salons have included: Floyd Abrams, Erin Murphy (Bancroft), Steven R. Shapiro (ACLU), David Skover, Paul M. Smith, and Nadine Strossen.

The next salon is set for November 5th in N.Y.C. with a videocast to the Abrams Institute in New Haven. It will feature an exchange between Steven Shiffrin (Cornell Law School) and Robert Corn-Revere on the topic: “What’s Wrong with the First Amendment?” The dialogue will be moderated by Ashley Messenger (NPR associate counsel).

“The marketplace of ideas finds a welcome home in these salons,” said David Skover. “As a graduate of Yale Law School (1978), I am excited that my Alma Mater is engaged in the future of the First Amendment Salon,” he added.

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FAN 34 (First Amendment News) Hybrid PACS — yet another case goes to High Court

I am posting this column a few days early since I will be traveling this week, but next week I’ll return to the scheduled Wednesday postings.

* * * *

Contributions earmarked solely for use in independent expenditures by “hybrid” political committees that engage in both independent expenditures and direct contributions to candidates appears destined to be a coming campaign-finance law battleground. — Judge Edith Brown Clement (2014)

Dan Backer

Dan Backer

The cases seem endless — that is, all those campaign cases that are finding their way to courts. One gets dizzy just drying to keep up with all of them as they are listed weekly on Professor Rick Hasen’s Election Law blog.

Recall, last week I posted a story about a campaign finance case that James Bopp, Jr. filed with the Supreme Court on Friday. Before the digital ink on that case could dry, voila, a new campaign finance case found its way to the Court only moments ago.

The case: Stop This Insanity Inc Employee Leadership Fund et al v FEC.  

The two issues in the case are: (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account, and (2) Whether the First Amendment forbids a government from restricting political speech based on the disclosure interest—an interest in providing the electorate with information about the sources of election-related spending—including when a more narrowly tailored remedy is available.

→ The man principally behind the case is a mild-mannered and quiet sort of guy, Dan Backer. He is no big time K street lawyer. No, his professional credentials are much more modest. He is the founder and principal attorney for DB Capitol Strategies, a campaign finance and political law firm in Alexandria Virginia. More importantly (and as David Skover and I noted in our book When Money Speaks), he was one of the driving forces behind the successful litigation of McCutcheon v. FEC (2014). When his team lost that case in the D.C. Circuit (in an opinion by Judge Janice Rogers Brown), it did not stop him — he took the case to the Supreme Court where Erin Murphy successfully argued the case for the Petitioner.

And now, Backer and a new team are at it again, in yet another campaign finance case — and again challenging a ruling by Judge Brown and her colleagues on the D.C. Circuit.

Lower Court ruling — “‘You can’t always get what you want'” 

→ Court of Appeals decision (D.C. Cir., Aug, 5, 2014), per Judge Janice Rogers Brown (joined by Judges Thomas Griffith and David Sentelle). Here is how Judge Brown began her opinion:

“The iconic musician Mick Jagger famously mused, ‘You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity Inc. (STII)—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending. Because this less-obsolete and less-onerous alternative exists, we decline Stop This Insanity’s invitation for us to tinker with what has become a statutory artifact.”

And here is how she ended it, albeit with musical flare:

“STII is already capable of sweeping solicitation. And yet, it wants a vehicle capable of soliciting without transparency. The Court has endorsed disclosure as “a particularly effective means of arming the voting public with information,” McCutcheon, 134 S. Ct. at 1460, and the Appellants’ approach would stifle the Government’s ability to achieve that endeavor. Our Constitution does not compel such a result.IIIWe may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”

Tillman Breckenridge

Tillman Breckenridge

The players

 Counsel of record on Cert. PetitionTillman J. Breckenridge.

 Other Counsel in the Case: The petition was filed by Tillman Breckenridge and Tara Brennan of the Reed Smith law firm, working in conjunction with the William & Mary Law School Appellate and Supreme Court Clinic, and Dan Backer.

→ Counsel for the FEC in Court of Appeals: Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission.

The initial advisory opinion request to the FEC and court filing were done by Steven Hoersting and Dan Backer.

Circuit Split

In his cert. petition, Mr. Breckenridge maintains that “the D.C. and Second Circuits directly conflict with the Fifth and Tenth Circuits on whether hybrid PACs can be prohibited.” The cases to which he refers are:

  1. Stop This Insanity Inc Employee Leadership Fund et al v FEC (D.C. Cir., 2014)
  2. Vermont Right to Life Comm., Inc. v. Sorrell (2nd Cir., 2014)
  3. Catholic Leadership Coal. of Tex. v. Reisman (5th Cir., 2014)
  4. Republican Party of N.M. v. King (10th Cir., 2013)

 → Will such differences in the Circuits be enough to prompt four of the Justices to review the enmeshment issue and/or the discourse one? Here is Professor Rick Hasen’s prediction: “I give this a reasonable chance of a cert. grant, given the circuit split (though not on the disclosure issues, but on the coordination/enmeshment issue.”

On a related matter: Federal judge rules donor disclosure required for political documentary

This from the JURIST website (Sept. 23, 2014):

The US District Court for the District of Colorado denied on Monday a request by Citizens United for a preliminary injunction to allow the conservative organization to air a political documentary without disclosing the film’s advertising donors as required by state law. The documentary, Rocky Mountain Heist, which the group hopes to air before November’s elections, “concerns various Colorado advocacy groups and their impact on Colorado government and public policy.” Citizens United argued, on First Amendment grounds, that its organization should be considered a “press entity,” entitled to the same exemptions as traditional media outlets, which are not required to disclose their donors. Otherwise, the group argued, it would be the victim of “viewpoint-based discrimination.” The court disagreed stating that people should be able to “discern the private interests behind speech when determining how much weight to afford it.” Citizens United intends [press release] to appeal this ruling to the US Court of Appeals for the Tenth Circuit.

Supreme Court: Results of Sept. 29th Conference Read More

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Should More Land Use Professors be Libertarians? Part II

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent downtown-houston-at-night-1430683-sthe aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning? Read More

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FAN 33.1 (First Amendment News) — Gov. Brown signs Confederate flag ban

Symbols of the Confederate flag are so unwelcome in California that this past Thursday Governor Jerry Brown signed legislation prohibiting state agencies from selling or displaying items bearing the Stars and Bars.

According to an August 21, 2014 news report in the Los Angeles Times:

A bill that would prohibit California from displaying or selling merchandise with the Confederate flag is headed to Gov. Jerry Brown’s desk, after getting final legislative approval in the Assembly on Thursday. The measure by Assemblyman Isadore Hall III (D-Compton) would prohibit the state from displaying or selling merchandise emblazoned with the Confederate flag. The ban would not apply to images of the flag found in books, digitial media or state museums if displayed for educational or historical purposes. Hall introduced the bill, AB 2444, after his mother, on a visit to the Capitol, saw a replica of Confederate money sold in the gift shop. The money contained a picture of the flag.The bill passed the Assembly on a bipartisan 66-1 vote, a symbol, Hall said, of “standing together united to fend off the ugly hatred of racism that’s been portrayed and demonstrated through the emblem of the Confederacy.”

The bill provides:

8195. (a) The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

(b) For purposes of this section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.

It’s now the law.

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FAN 33 (First Amendment News) What is a PAC? The next big issue?

This is the hottest issue in campaign finance litigation right now. James Bopp, Jr. 

James Bopp

James Bopp

What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.

James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”

Circuit split

Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).

In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:

Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”).  Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc.  v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).

We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.

 Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.

Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.

 Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.

The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”

→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).

New Litigation

Challenge to bans on controversial subway ads  Read More

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FAN 32.2 (First Amendment News) — Upcoming Sullivan conference at University of Oregon

New York Times v. Sullivan 50 Years Later:

Celebrating a Free Speech Landmark

The University of Oregon School of Journalism and Communications is hosting a conference on the Sullivan case. The schedule for the conference is set out below:

Friday, October 3, 2014 UO School of Law (Room 175)

8-8:30 a.m.          Registration — Location: outside Room 175

8:45-9 a.m.          Opening Remark

  • Michael Moffitt, Dean and Phillip H. Knight Chair, UO School of Law

9-9:50 a.m.          Keynote Address: 

                             “The Anatomy of a Great Case: The People Behind the Precedent

  • Professor Ronald K.L. Collins, University of Washington, School of Law

9:50-10 a.m.         Break

10-10:50 a.m.        NYT v. Sullivan: Has it Withstood the Test of Time?

Moderator:            Professor Ofer Raban, University of Oregon, School of Law

Panelists:

  • Professor Stephen Wermiel, American University, Washington College of Law
  • Attorney Bruce Johnson of Davis Wright Tremain
  • Attorney Ashley Messenger, NPR and American University School of Communication

11-11:50 a.m.        Oregon Law: Things Are Different Here Read More

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Enumerated Powers Reconsidered

I want to flag a new paper by Richard Primus (full disclosure–my co-clerk and friend) forthcoming in Yale Law Journal.  “The Limits of Enumeration” will likely be a significant contribution to the debate on the powers of Congress that was at the heart of NFIB v. Sebelius.  Here is the Abstract:

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internal-limits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. This Article explains why setting aside the internal-limits canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.

 

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Scottish Referendum and Evolutionarily Fit Legal Systems

Some thoughts in the aftermath of the scottish referendum.

Why do regions want to secede? To some extent, secession attempts imply a desire for different rules than the state provides. From the individual perspective, that of the individual scott, basque, or chechen, this suggests the state’s rules do not give the individual the freedom to do what the individual desires. From the collective perspective, this corresponds to the state not letting the local group determine its conduct the way that the group desires. Thus, from the individual’s perspective it is a question of freedoms and from the collective perspective it is an issue of federalism, local governance.

I’d like to think that the US does not have secessionist regions (like Scotland, the Basque country, Quebec, Catalonia, Chechnya, etc) because it has a legal system that produces enough freedom and welfare that individuals do not feel the desire to secede. This also suggests that the legal system should not be merely optimizing for welfare but for a combination of welfare and freedom (I am not forgetting equality; egalitarianism is a component of welfare). A note of optimism for the scholarly enterprise: Since we have no gauge of freedom, normative legal and economic scholarship is still scratching the surface. Read More

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FAN 32.1 (First Amendment News) — Cato hosts panel on First Amendment: Strossen discusses McCutcheon & history of ACLU stance

Many of us believe that [what] democracy is all about is that you vote for a candidate [and] you give money to a candidate because you want that person to share and be responsive to your concerns. That’s is not corruption; that is democracy.

Nadine Strossen, Sept. 17, 2014.

Earlier today the Cato Institute hosted a panel on the First Amendment. Here is the lineup:

Ilya Shapiro & Nadine Strossen

Ilya Shapiro & Nadine Strossen

Panel I: The First Amendment

Moderator: Ilya Shapiro
Editor-in-Chief, Cato Supreme Court Review

Nadine Strossen, Professor of Law, New York Law School

P.J. O’Rourke, H.L. Mencken Research Fellow, Cato Institute

Eric Rassbach, Deputy General Counsel, Becket Fund

Among other things, Professor Strossen said:

  • “My defense of letting money speak has, in most of my circles, caused me to be called a ‘puppet of plutocracy’ and not a champion of liberty.” [19.40-20.07]
  • “It was the ACLU that long spearheaded the fight against all of these laws, including in the 1976 landmark case of Buckley v. Valeo, in which the ACLU was both a plaintiff and co-counsel, and opposed every single aspect of the Federal Election Campaign Act.”  [21:06-21:24]
  • “Those of us who are First Amendment absolutists have been losing some ground, although I am happy to say that in contrast to former ACLU leaders, the current ACLU is very strongly opposing, and effectively opposing, the proposed constitutional amendment on this ground.” [20:39-20:57]
  • “Notably, one of the Buckley plaintiffs was Eugene McCarthy who repeatedly said he could not have mounted his historic challenge to Lyndon Johnson without very large contributions from a small handful of ‘fact cat liberals’ donors, and McCarthy could never understand how liberals could possibly support these limits in light of that experience. So, the ACLU argued in Buckley that contribution limits, as well as spending limits, violate not only free speech and association principles but also violate the very equality principles that are said to justify those limits.” [25:20-26:00]
  • “I continue to believe that invalidating contribution limits would boost democratic and egalitarian ideals as well as free speech. So, I welcome [the ruling in] McCutcheon v. FEC as a small but notable step in that direction.” [26:01-26:15]
  • “I do agree with Justice Thomas [in his McCutcheon concurrence] when he says that [the plurality opinion] is a rule lacking a rationale.” [29:53-30:17]
  • “[The Roberts Court's campaign finance] decisions have been incredibly maligned and misunderstood thanks to a lot of media distortion by media outlets that all have an unacknowledged conflict of interest because their voices are amplified by every law that restricts other voices in the campaign context.”[17:48-18:10]

Read More

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FAN 32 (First Amendment News) PA prosecutor targets teenager in Facebook-posting desecration case

He brags about it, he is proud of it, he put it on his Facebook page, and now he’s going to be held accountable for it. The  only reason that was done was to upset people. And if he wanted to engage in that kind of behavior, there’s consequences. — District Attorney William Higgins

A 1972 Pennsylvania law makes it a crime (a misdemeanor) to “intentionally desecrate any public monument or structure, or place of worship or burial.” That same law criminalizes the behavior of anyone who “intentionally desecrates any other object of veneration by the public or a substantial segment thereof in any public place.”

Dist. Atty. William Higgins

William Higgins

Here is the relevant definition: “Desecrate.” “Defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.” (See here for a list of similar desecration laws.)

Bedford County District Attorney William Higgins (FB re-election page here) has invoked that law to go after a 14-year-old boy who allegedly placed photos of himself “placing his crotch near the mouth of a statue of Jesus in prayer on Facebook. The allegedly victimized Jesus statue sits in the front yard of Love In the Name of Christ, a Christian organization in teen’s hometown of Everett, Pa.”

→ Photos of “desecration” here and video of CBS news affiliate story here, replete with phone comments by Mr. Higgins.

As reported in the Altoona Mirror, and as Mr. Higgins is said to have written on his Facebook page: “”I guess I should take solace in the fact that the liberals are mad at me – again. As for this case, this troubled young man offended the sensibilities and morals of OUR community. … His actions constitute a violation of the law, and he will be prosecuted accordingly. If that tends to upset the ‘anti-Christian, ban-school-prayer, war-on-Christmas, oppose-display-of-Ten-Commandments’ crowd, I make no apologies.'”

Jesus statue at center of controversy

Jesus statue at center of controversy

→ “Apparently, Mr. Higgins is unaware that the statue isn’t actually Christ, or even a revered piece of art depicting Jesus,” says columnist Drew Johnson writing in the Washington Times. “It’s just a painted piece of concrete mass produced from a mold and sold at flea markets, garden shops and home improvement stores across America. In fact, a slightly smaller version of the statue is available on Sears’ website for $225.” While that may be, the statue does nonetheless resemble what is often thought to be a Christ-like figure.

→ “There are some serious First Amendment issues with this statute” if merely gesturing next to an image is enough to be charged,” said Sara Rose, a staff attorney with the ACLU of Pennsylvania.

Professor Eugene Volokh, who first blogged on this story, argues: (1) by its terms, it is arguable whether the statute has been violated; (2) the law might be impermissibly vague; and (3) the law, on its face or as applied, may run afoul of the free speech clause of the First Amendment.

“Bedford County President Judge Thomas S. Ling said the next set of juvenile court hearings is scheduled for Oct. 3rd.”

Tenth Circuit rules in “true threats” case 

Writing for a three-judge panel in United States v. Heineman (10th Cir., Sept. 15, 2014), Judge Harris Hartz (joined by Judge Robert Bacharach with Judge Bobby Ray Baldock concurring in the judgment) reversed the Defendant’s conviction in a “true threats” case,this  even while the same general issue in the case is soon to be decided by the Supreme Court in Elonis v. United States.

Facts: “In 2010 and 2011 Defendant sent three e-mails espousing white supremacist ideology to a professor at the University of Utah. The first two e-mails did not contain threats, but the third made the professor fear for his safety and the safety of his family. Entitled “Poem,” it began by addressing the professor by his first name, and contained the following language:

Come the time of the new revolution

we will convene to detain youAnd slay you,

by a bowie knife shoved up into the skull from your pig chin

you choke, with blood flooding in your filthily treasonous throat!

We put the noose ring around your neckand drag you as you choke and gasp

The noose laid on the tree branch
and the fate hath conferred justice for Treason


You are a filthy traitor along the horde of anti-American and anti-Whitey comrades


whose justice shall come to be delivered
To fuck the traitors, for justice!
 fuck Mexico! fuck South America!


Fuck your soul to Hell!


Into the furnace pool of MexiShit as the filthily traitorous asshole and puta!

“Law-enforcement officers traced the e-mail to Defendant through his e-mail address, which had the user name “siegheil_neocon.” Id. at 91. When officers contacted him in writing, he responded immediately, “Is this about the email?” Id. He was charged in the United States District Court for the District of Utah with one count of sending an interstate threat, in violation of 18 U.S.C. § 875(c).”

Against that factual backdrop, Judge Hartz declared:

[T]o say that the effect on the listener supports a “threat” exception to the freedom of speech does not mean that no other considerations come into play. For example, it may be worth protecting speech that creates fear when the speaker intends only to convey a political message. As we understand Black, the Supreme Court has said as much. When the speaker does not intend to instill fear, concern for the effect on the listener must yield. In short, despite arguments to the contrary, we adhere to the view that Black required the district court in this case to find that Defendant intended to instill fear before it could convict him of violating 18 U.S.C. § 875(c). [footnote omitted] [re Defendant Heineman, see news story here]

While Judge Baldock concurred in the judgment, he declined to reach the First Amendment issue and instead grounded his opinion on statutory grounds: “The question presented in this case is whether § 875(c) requires the Government to prove a defendant’s subjective intent to threaten. The court concludes the First Amendment requires such proof. But to my mind we should resolve this case without resorting to the First Amendment by simply construing the statute’s text. Indeed, we are duty bound not to reach constitutional questions unnecessarily even if the parties ask us to do so.”

→ The case was successfully argued by Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah.

→ Questions: One wonders how the ruling in this case might affect the judgment and the analysis in Elonis. For example, will the facts prompt some of the Justices to be more guarded in their First Amendment analysis? Will the Heineman ruling further encourage some of the Justices to dispense with Elonis on statutory grounds? Or, will the Heineman ruling dissuade them from ruling in Mr. Elonis’ favor on either statutory or First Amendment grounds? Or are the facts in Elnois readily distinguishable such as to sustain the Defendant’s claims, either on statutory or constitutional grounds? Finally, if cert. is sought in Heinemanperhaps the Justices will remand it for consideration in light of whatever they do in Elonis. Meanwhile, one thing seems likely: the Heineman facts may well find their way into the oral arguments in Elonis.

→ Note: The Heineman majority declined to follow the ruling of the Sixth Circuit in another “true threats” case — United States v. Jeffries, 692 F.3d 473, 477–81 (6th Cir. 2012), cert. denied, 134 S. Ct. 59 (2013). That case, it should be noted, was also discussed at some length in the government’s reply brief in Elonis as well as in the ACLU’s amicus brief in that case.

(Hat tip to Joan Bertin)

Free expression cases on Court’s Conference docket  Read More