Tagged: First Amendment

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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 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 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case

Barry Richard, counsel for Florida Bar

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. The issue in the case 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.

As I mentioned, a petition for certiorari had been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

  1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
  2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
  3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

Additional information about the case is set out in FAN #25. Stay tuned for future developments.

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FAN 29 (First Amendment News) — Exceptional Freedom: How many exceptions are there to the First Amendment?

[W]e decline to carve out from the First Amendment any novel exception.                     – Chief Justice John Roberts (2010)

When we talk about exceptions to the First Amendment’s guaranty of freedom of expression, Justice Frank Murphy’s famous 1942 dictum in Chaplinsky v. New Hampshire comes to mind:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ―fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 

Note that the list of exceptions he offered was an incomplete one. To much the same effect as Chaplinsky, in his majority opinion in United States v. Stevens (2010) Chief Justice John Roberts declared:

From 1791 to the present, however, the First Amendment has ―permitted restrictions upon the content of speech in a few limited areas, and has never ―include[d] a freedom to disregard these traditional limitations.  . . . These historic and traditional categories [are] long familiar to the bar, . . . [and include] obscenity, . . . defamation, . . . fraud, . . . incitement, . . . and speech integral to criminal conduct . . . . [They] are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

Against that backdrop, the Chief Justice emphasized: “we decline to carve out from the First Amendment any novel exception.” He Unknownalso cautioned: “cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The question, of course, is exactly how many “well-defined and narrowly limited classes” of exceptions are there (Chaplinsky), or  precisely how many “historic and traditional categories” of speech fall outside of the First Amendment (Stevens)?

To answer that question it is important to note that not all of the categories listed by the Chief Justice are single-subject exceptions. For example, consider the “speech integral to criminal conduct” category. That exception itself consists of more than a few particularized exceptions. And then there are the other exceptions that were left unmentioned.

So many exceptions

Mindful of the above, and as I have noted elsewhere, here is a list of the additional (or more particularized) types of expression that have been deemed unprotected:

(1)       blackmail

(2)       bribery

(3)       misleading commercial expression

(4)       incitement to lawless action

(5)       expression that violates an intellectual property right

(6)       criminal conspiracy expression

(7)       threatening expressions

(8)       expression that endangers national security

(9)       insider trading expression

(10)     perjurious expression

(11)     harassment in the workplace expression

(12)     expression in contempt of court

(13)     plagiaristic expression

(14)     criminal solicitation (e.g., prostitution or murder for hire)

(15)     child pornography

(16)     speech that amounts to bullying

(17)     intentionally false speech likely to create a dangerous public panic

(18)     intentionally misrepresenting oneself as a government official

(19)  intentionally false material statements made to voters concerning authorship or endorsement of political campaign materials

(20)     certain kinds of intentionally false statements made about a political or public figure

(21)     certain kinds of prisoner expression

(22)     certain kinds of government employee expression

(23)     certain kinds of government funded expression

(24)     certain kinds of student expression

(25)     certain kinds of expression by those in the military

(26)     expression deemed secret owing to a private contract or law

(27)      certain kinds of expression expression that unfairly places another in a false light

(28)     intentional expression that causes emotional distress

(29)     expression in violation of anti-trust laws

(30)      certain kinds of expression that cause prejudicial publicity that interferes with a fair trial

(31)     intentionally disclosing the identity of secret government agents

(32)     certain kinds of expression that invade the privacy of another

(33)     certain kinds of expression limited by time, place, and manner restrictions

(34)     certain kinds of expression that involves intentional lying

(35)     certain kinds of expression by sitting judges

(36)     certain kinds of expression aired on the public airwaves

(37)     certain kinds of panhandling

(38)     certain kinds of telemarketing

(39)     certain kinds of speech harmful to minors

(40)     certain kinds of commercial solicitation (e.g. lawyers soliciting business)

(41)   certain kinds of expression concerning the unauthorized practice of some licensed profession (e.g., medicine or law)

(42)     certain kinds of intentional lying to government officials (e.g., lying to Congress while under oath or false police reports) and

(43)     certain kinds of evidence introduced into court and in courtroom expression governed by the rules of evidence.

And what of revenge porn & cyber harassment?

Are there more? Perhaps. Might some of the above ones now be deemed unconstitutional? Perhaps. That said, my point is that the lists offered in Chaplinsky and Stevens (among other Supreme Court opinions) give the impression that the number of exceptions to the First Amendment is actually far fewer than may well be the case.

In all of this, however, I do not mean to undermine a robust commitment to free speech freedom — a commitment well beyond what is fashionable in many circles of academia today. Still, if originalism is to be a significant and even determinative guide here, we must be duly mindful of its true dimensions. This is not to say the results reached by the Roberts Court in several First Amendment cases could not otherwise be justified, but rather that some of the Court’s originalist language needs to be more fully stated and explained.

Justices asked to review Secondary Effects case  Read More

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Dr. King on the First Amendment & the right to protest

Screen Shot 2014-08-14 at 11.21.51 PMMartin Luther King, Jr., April 3, 1968:

All we say to America is, “Be true to what you what you say on paper.” If I lived in China or even in Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights. 

See YouTube clip here.

→ See also the following books and articles:

  1. Harry Kalven, The Negro and the First Amendment (1965)
  2. David Garrow, Protest at Selma:Martin Luther King, Jr. and the Voting Rights Act of 1965 (1978)
  3. Andrew Mach, “Martin Luther King Jr.: 8 peaceful protests that bolstered civil rights,” Christian Science Monitor, Jan. 15, 2012
  4. Burke Marshall, “The Protest Movement and the Law,” 51 Virginia L. Rev. 785 (1965)
  5. Clark McPhail, David Schweingruber & John McCarthy, “Policing Protest in the United States: 1960-1995” in Policing Protest (1998) by  Donatella D. Porta, et al, eds.
  6. Lewis F. Powell, Jr., “A Lawyer Looks at Civil Disobedience,” 23 Wash. & Lee L. Rev. 205 (1966)
  7. Nicholas Katzenbach, “Protest, Politics and the First Amendment,” 44 Tulane L. Rev. 439 (1970)
  8. Ronald Krotoszynski, Jr. “Celebrating Selma: The importance of context in public forum analysis,” 104 Yale L. J. 1411 (1995)
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FAN 26 (First Amendment News) — Akhil Amar on the “First” Amendment

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. Akhil Amar

Professor Akhil Reed Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?'”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

Sam Walker to Launch Civil Liberties Web Site Read More

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FAN 22 (First Amendment News) — New Documentary on Mr. First Amendment — Nat Hentoff

imagesPerhaps no person alive better embodies the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff. Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There is also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it makes him. Some liberals love him, some conservatives admire him, and some libertarians applaud him — but very few come along for the full Hentoff monty. And that’s the way he likes it! If you have an open mind and a tolerant side, you gotta love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the new documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

→ Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

 Screenings have been in New York and are now happening on the West Coast.

Nat Hentoff on Bill Buckley's Firing Line

Nat Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat Hentoff’s books on free speech and related topics include the following:

→ As if that were not enough (and I left out all the jazz books), I gather that the 89-year-old Hentoff is working on a new book.

Video clips

See and hear the man himself on this Brian Lamb, C-SPAN (YouTube) interview with Nat (go here).

→ And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

→ One more — this is precious: The young Nat debating the young Bill Buckley on Firing Line.

Shaun McCutcheon Launches Litigation Group

The petitioner in the landmark McCutcheon v. FEC (2014) case has decided he wants to do more to further the cause of the First Amendment as he understands it. To that end, Shaun McCutcheon has launched a foundation — the Coolidge-Reagan Foundation.

→ Its purpose? “The Foundation is dedicated to defending, protecting, and advancing political speech.” Read More

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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 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.”