Tagged: Constitutional Law

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FAN 21.1 (First Amendment News) — Group Launches Litigation Campaign to Challenge Campus Speech Codes

L to Rt: Paul Gerlich & Erin Furleigh (Iowa St. U.), Robert Corn-Revere (DWT), Greg Lukianoff (FIRE) & Isaac Smith (Ohio U.)

L to Rt: Paul Gerlich & Erin Furleigh (Iowa St. U.), Robert Corn-Revere (DWT), Greg Lukianoff (FIRE) & Isaac Smith (Ohio U.)

July 1, 2014, National Press Club, Washington, D.C. Today, two powerhouses — one a free speech activist, the other a noted First Amendment lawyer — joined forces to challenge campus free speech codes that run afoul of the First Amendment. Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE) and Robert Corn-Revere, a partner at Davis Wright Tremaine (DWT), announced that the group and the law firm would work together in a litigation campaign to change the free speech culture on many campuses across the nation.

“Unconstitutional campus speech codes have been a national scandal for decades. But today, 25 years after the first of the modern generation of speech codes was defeated in court, 58% of public campuses still hold onto shockingly illiberal codes,” said Lukianoff. “For 15 years, FIRE has fought for free speech on campus using public awareness as our main weapon, but more is needed. Today, we announce the launch of the Stand Up for Speech Litigation Project, an expansive new campaign to eliminate speech codes nationwide.”

“We at Davis Wright Tremaine,” said Corn-Revere, “are honored to be asked to participate on the important work of helping to safeguard First Amendment and due process rights of America’s college campuses as part of FIRE’s Stand Up for Speech Litigation Project. It is a privilege to represent the courageous young women and men, and the faculty members, who have opted not to follow the path of least resistance, but instead have chosen to challenge the exercise of arbitrary and illegal authority. These are acts of civic virtue . . . .”

→ The DWT litigation team will include input from two seasoned First Amendment lawyers — Ronnie London and Lisa Zycherman.

Text of T-shirt banned at Ohio University.

Text of T-shirt banned at Ohio University.

The litigation campaign was launched to challenge speech codes at public institutions on behalf of students, student groups, and faculty members. Four lawsuits were filed today in federal district courts:

  1. Ohio University — Smith v. McDavis et al 
  2. Iowa State University — Gerlich & Fuleigh v. Leath et al
  3. Chicago State University — Berry & Bionaz v. Chicago State University Board of Trustees
  4. Citrus College — Sinapi-Riddle v. Citrus Community College et al

Three of the student plaintiffs in the lawsuits — Paul Gerlich and Erin Furleigh (Iowa State Univ.) and Isaach Smith (Ohio Univ.) — took part in the press conference. Mr. Smith and his group, Students Defending Students, were told by Ohio University officials that they could not wear certain T-shirts (see photo above) because such actions would violate a school policy that prohibits any “act that degrades, demeans, or disgraces” another student, in this case women. “I’m tired of having my university work so hard to stop people from speaking,” said Mr. Smith.

Ronald London (DWT)

Ronald London (DWT)

Over at Iowa State University the fight centered around another objectionable T-shrt, this time one that purportedly violated a school owned trademark (see here).  “I feel bad and I don’t think I should feel bad about it,” Ms. Furleigh complained about censorship against her and her group, the NORML chapter at ISU. “Our university administration has prevented us from even putting the word marijuana on our designs,” Furleigh added.

Lisa Zycherman, DWT lawyer

Lisa Zycherman (DWT)

The challenges concern:

  1. restrictions on the design of T-shirts for campus organizations at Ohio University and Iowa University,
  2. engaging in expressive political activities outside a “free speech zone” while seeking signatures for an anti-NSA petition at Citrus College, and
  3. retaliation against professors for statements on a blog, purportedly in violation of Chicago State University’s broad cyberbullying policy.

→ Starting with Doe v. University of Michigan in 1989, there has been a virtually unbroken string of victories in court challenges to various college campus speech codes.

Meanwhile, Mr. Corn-Revere and his DWT team await a decision in another campus speech case he argued in the 11th Circuit on June 13th of this year — Barnes v. Zaccari. 

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FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government. . . . False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

Read More

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FAN 20.5 (First Amendment News) — Move to Amend First Amendment Continues

imagesAccording to a June 26, 2014 Bloomberg BNA news story by Nancy Ognanovich & Kenneth P. Doyle:

“Senate Majority Leader Harry Reid’s (D-Nev.) priority list for Senate action in July includes plans to schedule votes on a constitutional amendment to protect the authority of Congress to regulate campaign finance, as well as a separate campaign finance disclosure measure—known as the DISCLOSE Act—that failed in previous years, aides said. . . .”

Vote in Subcommittee: “The proposed campaign finance amendment to the Constitution was approved by the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights June 18th on a 5-4, party-line vote. The measure was set to be considered June 26th by the full Judiciary Committee, but was held over.”

Substituted language: “The subcommittee adopted a substitute to Sen. Tom Udall’s (D-N.M.) proposed amendment (S. J. Res. 19) offered by panel Chairman Richard Durbin (D-Ill.). The measure would allow Congress and the states to set ‘reasonable limits on the raising and spending of money by candidates and others,’ and would further permit Congress and the states to prohibit campaign spending by ‘corporations or other artificial entities.'”

See also this op-ed by Josh Blackman: “Democrats are Trying to Rewrite the First Amendment,” American Spectator, June 25, 2014

→ For earlier coverage of this proposed constitutional amendment, see:

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FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case

I thought it might be interesting to share excerpts from some of the commentary on McCullen v. Coakley. Here are 9 views on the case:

#1 — The American Civil Liberties Union

“This is a hard case and the majority opinion reflects the difficulty and importance of balancing two constitutional rights: the right of women to enter and leave abortion clinics free from the harassment, intimidation, and violence they have too often suffered in the past; and the right of peaceful protestors to express their opposition to abortion on the public streets outside abortion clinics.

We agree that a fixed buffer zone imposes serious First Amendment costs, but we also think the Court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws – especially regarding harassment – outside abortion clinics.

Today’s opinion makes it more important than ever that the police enforce the laws that do exist in order to ensure that women and staff can safely enter and leave abortion clinics.” Steven R. Shapiro (press release, June 26, 2014) (ACLU amicus brief here)

#2 — Judge Richard Posner

“Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?). The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

#3 — Laurence Tribe

“The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice.

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

. . . [N]either empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.” (New York Times, June 26, 2014)

#4 – Walter Dellinger

“This case is really about the unwilling listener who is forced to submit to lectures she does not want to hear at a time of stress. (It would be easy enough to a protester standing a mere 12 yards away to hold up a sign saying, “Talk to me about your choice.”) Like many of the court’s decisions, this one draws a line across society on social and economic grounds. The wealthy elite—like Supreme Court justices—rarely if ever have to make their way through crowds that surround them and berate them or even plead with them in softer voices. Those who work at the Supreme Court (or at law firms like mine) most often drive (or are driven) into underground garages at work or at doctors’ offices. It is students, secretaries, school teachers, and other ordinary people who have to get off the bus or the subway and push their way through hostile crowds of those who may get in their faces and do everything they can to impede their entrance into a clinic. The gauntlet of the final entrance is but the final step that follows from the relentless creation of hurdles that are effectively depriving the most vulnerable women of the right that was promised to them in Roe v. Wade.

The creation of a relatively small space free of protesters in front of a clinic hardly shuts off debate. In defense of the notion that the space is relatively small, I post here one of the maps in the brief for Planned Parenthood of Massachusetts and Planned Parenthood Federation of America (a brief on which I was co-counsel.)” (Slate, June 27, 2014)

#5 – Amy Howe

“Although we often think of Justice Anthony Kennedy as the pivotal vote on the Court in high-profile cases, yesterday it was Chief Justice John Roberts who played that role, writing an opinion that had the support of the four more liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan.” (SCOTUSblog, June 27, 2014)

#6 – Kevin Russell

“In today’s decision, the Court holds unconstitutional the Massachusetts law establishing a thirty-five-foot fixed buffer zone around abortion clinics in the state.  But did it, in the process, overrule Hill?  Certainly, the majority opinion by the Chief Justice does not do so expressly (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled).  Indeed, it is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.

The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill.  There’s a good argument that they would.

To be sure, there is one big difference between the laws in the two cases: Hill involved an eight-foot floating buffer zone around individuals within a hundred feet of abortion clinics, while this case involved a thirty-five-foot fixed buffer zone.  One might think that the sheer size difference could be determinative – one can still talk (albeit loudly) to someone eight feet away, and offer her literature; the decision today noted that this is much harder from the distance of thirty-five feet.” (SCOTUSblog, June 26, 2014)

#7 – Dahlia Lithwick

“While the decision is not monumentally awful in ways some progressives most feared, and certainly affords the state substantial latitude in its future attempts to protect women seeking abortions from harassment, more than anything it seems to reflect a continued pattern of “free speech for me but not for thee” or, at least, ‘free speech for people who think like me, that pervades recent First Amendment decisions at the court. More importantly, I don’t know where to locate this ruling in the burgeoning doctrine of “the right to be let alone” that Justices Alito and Thomas and Breyer have espoused, nor do I know how to reconcile it with the court’s persistent second-rate treatment of any speech that threatens to harass the justices themselves. . . .

In a gorgeously un-self-aware way, the same Supreme Court that severely limits speech and protest in a buffer zone all around its own building, extolls the unique and wonderful properties of the American boulevard in today’s opinion . . . .

But it is exhausting to keep hearing from the pro-life movement that women seeking abortions are magical pixie princesses, who must be—thank you Justice Kennedy—babied and soothed and gently counseled for the brief moments in which they contemplate abortion. As though these “difficult conversations” are really only for their own benefit. Unlike mourners, or voters, or Supreme Court justices, they simply need to be told what to do. That’s why this case is harder than a simple “yay, speech wins” reaction can capture: Privileging “gentle counseling” for some isn’t quite the same as promoting free speech for all.”  (Slate, June 26, 2014)

#8 – Hadley Arkes

“The outcome in McCullen v. Coakley may not be as bad as Justice Scalia thinks it sounds. For my own part, I think that Justice Scalia is inescapably right in seeing the statute in Massachusetts as part of a scheme to close down, in the public forum, speech that is critical of abortion. But that critique may distract us from seeing what has been accomplished in this case. John Roberts, in his opinion for the majority, has picked up on some of the critical points that Scalia himself made during the oral argument in McCullen v. Coakley — most notably, that it was quite wrong to describe the speech of Eleanor McCullen as a “protest.” For Roberts it was as critical here, as it has been for Scalia, to put the accent on the fact that Eleanor McCullen works by quietly offering information to women entering an abortion clinic.” (National Review, June 26, 2014)

#9 – Geoffrey Stone

“Critics of the decision regard [the plurality's] approach as fundamentally naïve and unrealistic about what actually happens when anti-abortion protesters gather near the entrances to these facilities. These critics maintain that the image of the grandmotherly woman calmly approaching a young woman heading into the clinic in order to have an abortion and asking her if they might chat a bit about whether this is really a good idea is wholly fanciful and blinks the reality of what actually happens at these moments. . . .

In their view, a clean, simple rule, like the one enacted by Massachusetts, is a perfectly reasonable way to deal with the world as it is, rather than the world as Chief Justice Roberts imagines it to be. In the view of the critics, the more ‘narrowly-tailored’ restrictions that Roberts would approve are not really responsive to the complex, highly emotional, and often intimidating and even dangerous situations that actually arise in these settings.

The critics maintain that requiring people to stand 35 feet away from the entrance, while still allowing them to speak from there, is a sound and reasonable compromise between the free speech rights of those who oppose abortion and the rights of those who wish to exercise their constitutional right to reproductive freedom free of intimidation by others.

Although reasonable persons can differ about how best to reconcile these competing interests, I am inclined to agree with the critics of the decision that it unnecessarily and inappropriately set aside a reasonable and sensible compromise that better adjusted the competing interests than the more ‘narrowly-tailored’ alternatives that Chief Justice Roberts held would pass constitutional muster.

. . . . [I]t is worth noting that this case must have been especially difficult for the Court’s four ‘liberals,’ all of whom are strong protectors of both the freedom of speech and the right of a woman to terminate an unwanted pregnancy. For them, Justice Roberts’ moderate, middle-ground probably gave them a resolution that, although perhaps not ideal, they could live with.” (Huffington Post, June 27, 2014)

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FAN 20.3 (First Amendment News) — The Roberts Court & Unanimous First Amendment Judgments

  • Who would have guessed the 9-0 vote in McCullen v. Coakley? Back in January there was this assessment from a veteran Court reporter:

Equally Divided: “Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, Chief Justice John Roberts asking no questions. The Chief Justice’s silence seemed to indicate that he likely will be the deciding vote in the case.” – Nina Totenberg, Jan. 15, 2014

That Catholic University Law Professor Mark L. Rienzi would have prevailed in his case in defense of the Petitioners seemed likely enough. But unanimous? The vote surely surprised many seasoned Court watchers.

Professor Mark Rienzi

Professor Mark Rienzi

Take note: It was the third time in one Term that the Roberts Court was unanimous in a free speech case, and also the first time that the Court was unanimous in sustaining a First Amendment free expression claim in two cases:

  1. Lane v. Franks (2014) [vote-9-0 on FA issue only, not on qualified immunity]
  2. McCullen v. Coakley (2014)

This is significant because in every other free speech case where there was a unanimous judgment the Court denied the First Amendment claim.  The 9 cases are:

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0]
  5. Locke v. Karass (2009) [vote: 9-0]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0]
  8. Reichle v. Howards (2012) [vote: 8-0]
  9. Wood v.Moss (2014) [vote: 9-0] [FA and qualified immunity]

A Princely Move?  

So what gives in McCullen? Not even a whisper of a separate opinion from any of the liberal Justices, especially the female ones. Could it be that the Chief Justice wanted unanimity enough that he stayed his hand in reversing Hill v. Coloradothis to secure four votes from the liberal bloc? Maybe Nina Totenberg was right; they were divided until, that is, the Chief Justice made his “Machiavellian” move. The result: the law is struck down, which pleases the conservatives, though on narrow grounds, which pleases the liberals. No one is really happy, but the judgment is unanimous . . . in an abortion case! 

Meanwhile, Justice Scalia (joined by Justices Kennedy, and Thomas) would have none of it:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. . . . This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. . . .  Just a few months past, the Court found it unnecessary to “parse the differences between . . . two [available] standards” where a statute challenged on First Amend­ment grounds “fail[s] even under the [less demanding] test.” McCutcheon v. Federal Election Comm’n . . . (plurality opinion) What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not. . . . In concluding that the statute is con­ tent based and therefore subject to strict scrutiny, neces­sarily conclude that Hill should be overruled. 

  One more thing: this is another First Amendment majority/plurality opinion by the Chief Justice (that makes 12). In that regard, he leads all other Justices by a wide margin.

NOTE: My next scheduled FAN column will provide detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this Term.

Last FAN Columns

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FAN 20.2 (First Amendment News) — 28 Briefs Filed in McCullen, Only 1 Cited by Court

The Court in McCullen v. Coakley had plenty of help offered to it — 28 amicus briefs were filed. Those submitting amicus briefs included the following groups:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

That said, the Court elected to reference only one amicus brief, and it did so in Chief Justice John Roberts opinion.

The brief the Chief Justice found particularly useful was one filed by New York Attorney General Eric T. Schneiderman, a brief submitted on behalf of New York and 12 other states along with the territory of the Virgin Islands.  The brief was submitted on behalf of the Respondents, who lost by way of a unanimous judgment.  

As it turned out, the Chief Justice and his colleagues referenced the New York brief  in support of the Petitioners:
The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. At the outset, we note that the Act is truly exceptional: Respondents and their amici identify no other State with a law that creates fixed buffer zones around abortion clinics. [fn to NY et al amicus brief]  That of course does not mean that the law is invalid. It does, however, raise concern that the Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage. 

And then later in the opinion, the New York amicus brief was also tapped to help defeat the case for the Respondents:

If Massachusetts determines that broader prohibitions along the same lines are necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both crimi­ nal and civil penalties anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intim­ idate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” Some dozen other States have done so. See Brief for State of New York et al. as Amici Curiae 13, and n. 6.

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FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.

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Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.

Counsel

  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.

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FAN 20 (First Amendment News) — New Book, New Legislation, New Study & More News

No First Amendment cases from the Supreme Court today. Most likely tomorrow (perhaps Monday?).

→ What’s left? The only First Amendment free expression cases left to be decided this Term are:

  1. McCullen v. Coakley
  2. Harris v. Quinn

New Book — Tribe & Matz on Roberts Court & Free Speech 

Laurence Tribe

Laurence Tribe

In May of 2013 I profiled a forthcoming book, which has just been released. “Forty-five years after the publication of his first book (Technology: Process of Assessment and Choice), Laurence Tribe is preparing to release another book, tentatively titled Uncertain Justice (2014).” I wrote that in SCOTUSblog. “This forthcoming offering,” I added, “will come out six years after Tribe’s last book (The Invisible Constitution). The book will be the Harvard Law professor’s sixteenth. Like a few of his other works, Uncertain Justice will be co-authored – this time Joshua Matz is his literary partner on this work on the Roberts Court.” Well, wait no more; here it is: Uncertain Justice: The Roberts Court & The Constitution (Henry Holt, 2014). Mr. Matz is a Harvard law graduate who clerked for Judge Stephen Reinhardt and will soon clerk for Justice Anthony Kennedy.

Joshua Matz

Joshua Matz

While Uncertain Justice has received some early favorable reviews, my focus here is on only two chapters in the book: Chapter 3 (“Campaign Finance: Follow the Money”) and Chapter 4  (“Freedom of Speech: Sex, Lies & Video Games”). Together, these chapters consume 165 of the book’s 320 pages of text.

↓→ Campaign Finance

“The truth is somewhere in the middle.”

In a galvanized world of frenzied litmus-test beliefs over the role of money in our electoral system, Tribe and Matz (T&M) can be refreshingly open-minded: “It is easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality,” they write. “Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians.”

Then again, they do speak of the “Roberts Court’s broader agenda of deregulating campaign finance” reforms.  On that score, they maintain that by “reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts — and funds — politics.” In an endnote (p. 342, n. 64) they state: “While we do not purport to identify specific instances in which electoral outcomes shifted because of trends triggered by Citizens United, it seems to us highly likely that this has occurred in at least some races.”

While the authors freely offer the views of the “many critics of Citizens United,” they also concede that “Citizens United was a hard case because the Court faced a choice among evils.” With welcome objectivity and nuance, they add: “it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny.  Judges have long implemented the First Amendment by requiring — among other things — that  restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America,” they stress, “and the reasons why politicians act the way they do . . . are many and complex.  Money in politics is only part of that story . . . .”

On the one hand, T&M understand how the Roberts Court’s narrow definition of corruption might be viewed as necessary in order to foster a “workable” body of First Amendment law sensitive to the concerns of free speech. On the other hand, they think that the Citizens United Court might have resorted to a “more modest” course of action that would “have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity.” In other words, they tread cautiously in this ideological minefield.

So what should reformers do? In an endnote, Professor Tribe discloses that he “assisted Representative Adam Schiff of California in drafting a proposed [constitutional] amendment that was introduced in the 112th Congress.” That said, no defense of such radical constitutional surgery is offered in the book. In fact, the authors skip quickly past calls for constitutional amendments. Instead, they counsel that “critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.” {See DISCLOSE Act item below}

If there were ever to be a national forum on the First Amendment and campaign finance reform, the organizers would be wise to invite Messrs. Tribe and Matz, if only to add some light in an otherwise overheated universe.

Note: Since Uncertain Justice was completed in “early 2014,” the Court’s April 2014 ruling in McCutcheon v. FEC (2014) is not discussed.

 Sex, Lies & Video Games Read More

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FAN 19.5 (First Amendment News) — Supreme Court Decides Public Employee Speech Case: 1-A Claim Prevails 9-0

The Supreme Court just handed down its opinion in Lane v. Franks.  The vote was unanimous and the opinion for the Court was authored by Justice Sonia Sotomayor.  The opinion can be found here. Justice Clarence Thomas filed a concurring opinion in which Justices Antonin Scalia and Samuel Alito joined.

Issues: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.

  1. Held: “The Court holds that Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. His testimony was speech as a citizen on a matter of public concern.” (Amy Howe)
  2. The Court also holds that “the individual defendant has qualified immunity from this suit because prior precedent wasn’t clear enough that you could not fire an employee for sworn testimony.” (Tom Goldstein)

Tejinder Singh (Goldstein & Russell) counsel for Petitioner.

Select Excerpts from Majority Opinion

First Amendment Issues

  • Matters of Public Concern & Encouraging Public Employee Speech — “Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights. . . . There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees.”
  • Reserved for a Future Case: “We . . . need not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today.” (emphasis added)
  • Truth is a Defense: “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment. . . . When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testi- mony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”
  • Garcetti Distinguished: “Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”
  • Key Garcetti Question: “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.
  • Value of Speech by Public Employees: “It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”
  • Preventing Corruption: “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

Justice Thomas’ Concurrence

  • Limited Application of Garcetti: Deciding this case “requires little more than a straightforward application of Garcetti. There, we held that when a public employee speaks “pursuant to” his official duties, he is not speaking “as a citizen,” and First Amendment protection is unavailable. The petitioner in this case did not speak “pursuant to” his ordinary job duties because his responsibilities did not include testifying in court proceedings, and no party has suggested that he was subpoenaed as a representative of his employer.”
  • Employee Speech re Work-Related Responsibilities: “We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. For some public employees—such as police officers, crime scene techni- cians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers.” 
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Richard Posner & NAACP v. Button — A Short History

Since I had to prepare remarks for a panel discussion for today, I was unable to do my weekly First Amendment News column. Instead, I opted to present an abbreviated essay from a work-in-progerss, actually two. In the main, I  stitched together something from one of my books (We Must not be Afraid to be Free) and a future article (“The Maverick – A Biographical Sketch of Richard Posner”), this in addition to some reliance on Justice Brennan: Liberal Champion (2010) by Seth Stern and Stephen Wermiel and other works. I also benefitted from the thoughtful assistance of Judge Posner and Robert M. O’Neil. The result is this post, also a prelude to a more scholarly work on NAACP v. Button (1963). Shortly, I will say more about Judge Posner’s involvement in Button, but before I do I thought it might useful to say a few prefatory things about the history of the case.

* * * *

The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.

 For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).

The Hand of Fate

Robert Button was the Attorney General of Virginia (1962-1970) who backed policies of Massive Resistance to prevent public school desegregation.

Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)

When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.”

Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)

At the same time, Justice Black circulated drafts of a dissent in which he claimed, among other things, that perhaps the law should be renamed “[a]n Act to make it difficult and dangerous for the [NAACP] and Virginia lawyers to assert the constitutional rights of Virginia Negroes in state and federal courts.” Then Black added a passage revealing how far removed he was from his days as a hooded member of the Ku Klux Klan. “The job of lawyers under [the] Constitution is not to lead revolutions, but to lead their people in taking advantage of the American methods for correcting injustice.” And courts, Black continued, had a responsibility to serve as “sanctuaries of justice.” To ignore that role here, he concluded, was to leave the courts “a little less havens of refuge than they were before this Virginia law was sustained.”

Robert L. Carter, lawyer for the NAACP

Robert L. Carter, lawyer for the NAACP

Justice Black’s internal comments exposed just how wide the ideological chasm had grown between the members of this Court. But Robert Carter wouldn’t get a chance to read them. Nor, for that matter, would anyone else. On April 1, 1962, before the Court could announce its decision in NAACP v. Button, Justice Whittaker retired on the advice of his physician. He was sixty-one. The “great volume and continuous stresses of the court’s work,” he explained in a written statement, had brought him to the “point of physical exhaustion.” That left a four-to-four split among the remaining jurists, who scheduled a rehearing of the case the following term. Then, a few days later, seventy-nine-year-old Felix Frankfurter collapsed at his desk from a stroke. He lived, but shortly afterwards he announced his retirement. Just like that, President Kennedy could appoint two new Justices—and Robert Carter could feel new hope.

 An audio of the arguments in NAACP v. Gray can be found here.

New Faces, New Result

By the fall of 1962, President Kennedy had successfully appointed to the bench his top two choices—Byron White and Arthur Goldberg. And it promised to be a busy fall at the Supreme Court after they were both confirmed. Sometime around then, as Stern and Wermiel recount it, Justice Brennan busily circulated a 63-page memo that detailed the activities of the NAACP and its Virginia branch.

After hearing rearguments in Button, the Justices met privately to discuss the case on October 12, 1962. Chief Justice Warren had not changed his mind since first discussing the facts a year earlier. “The NAACP has a right to be in business,” he began. “If this suit goes against the NAACP, it is out of business.” Justices Black, Douglas, and Clark also maintained their original opinions. So did the typically restrained Justice John Marshall Harlan, who continued to claim that Virginia’s new law was “plainly constitutional. . . . Brown v. Board of Education will never work out if it is left in the federal domain. The states must do it. We have no reason to reverse Virginia on this law.” Justice Potter Stewart, the Eisenhower appointee from Cincinnati with the unpredictable voting record, was the first of the veteran Justices to suggest a possible change of heart. “I am not sure,” he said, “but I am inclined to reverse.” Justice White, the first of the two new members to speak at the private conference, was even less certain than Stewart. “I do not know where I stand.” Goldberg was more certain. “There is a substantial equal protection point here and I could reverse on that,” he said. Read More