Tagged: First Amendment law

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FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

  • Judge Breyer has a unique zig-zag style. Ralph Nader (confirmation hearing statement, July 15, 1994)
  • I do not rest my conclusion upon a strict categorical analysis. – Justice Stephen Breyer (concurring in United States v. Alvarez, June 28, 2012)
  • The single most important area of Breyer’s work on the Court has been his opinions on the First Amendment, in which he has developed a unique and pathbreaking approach to issues of freedom of speech. — Paul Gewirtz (Yale Law Journal, 2006)
Justice Stephen Breyer

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

Let me pose a hypothetical

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

a pensive moment

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

First Circuit Free Expression Opinions Read More

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FAN 40.1 (First Amendment News) Banzhaf responds to Corn-Revere on FCC Redskins Flap

Professor John Banzhaf

Professor John Banzhaf, III

In an earlier post I profiled Robert Corn-Revere’s WSJ op-ed entitled “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.” The op-ed was written in critical response to a petition filed by George Washington Law Professor John Banzhaf to the Federal Communications Commission concerning the use of the Washington Redskins’ name on broadcast airwaves. At the end of my blog profile I invited Professor Banzhaf to respond, which he has now done. His response is set out below.

Robert Corn-Revere apparently objects that I have asked the FCC not to renew the broadcast license of a station that repeatedly and unnecessarily broadcasts a word which has been found in several legal proceedings to be a racial slur even when applied to an NFL team – “R*dskins,” the so-called R-word, equivalent to the N-word so hateful to African Americans, and never used on the air – and is even so defined in most dictionaries. But, in an apparent attempt to prove some point, he describes at length a major life-saving step I persuaded the FCC to take, and (perhaps deliberately) overlooks several obvious points.

In 1966 I persuaded the FCC with one filing (far shorter than the one now in question, and one which many likewise called “frivolous” at the time) to apply a largely unknown and moribund principle – the “Fairness Doctrine” — to cigarette advertising. The result was that anti-smoking messages were broadcast on radio and TV for the first time — hundreds of millions of (1968) dollars worth. This caused the country’s first major drop in cigarette consumption; estimated by itself to have saved millions of lives. It also led directly to a ban on cigarettes commercials; something which saved even more lives, and hundreds of billions of dollars in health care costs. [See  Banzhaf, et al. v. Federal Communications Commission, et al. (D.C. Cir., 1968, per Bazelon, C.J.)]

imagesThose who seek to hide behind the First Amendment argued then, as Corn-Revere does now, that both moves — first forcing stations to broadcast statements against smoking, and then banning them from running cigarette commercials — violated Free Speech, but I successfully defended both decisions in court. Thus, I was able to persuade the FCC to make one of its most important and significant decisions ever — one which saved millions of lives and got rid of cigarette commercials — yet Corn-Revere criticizes the fact that the FCC granted my request, apparently because the Fairness Doctrine was later abandoned. Yet this makes as much sense as criticizing the Special Prosecutor legislation (which I also had a hand in bringing into effect) — which helped save the country from a major constitutional crisis during Watergate — because it likewise was eventually allowed to expire.

He also fails to mention another FCC filing of mine that forced the major TV stations in DC — and eventually around the country – to begin featuring African Americans as reporters and in other significant on-air positions. That one, like the one he now criticizes and seeks to belittle, was likewise based on allegations of racism. Corn-Revere also fails to note how many of my other agency petitions, likewise derided as “frivolous” and/or publicity stunts at the time, were granted and were successful: in getting women admitted, for the first time, to the Cosmos Club and to formerly all-male state-supported military academies; in restricting and ultimately banning smoking on airplanes; in changing labels on foods, birth control pills and elsewhere; in striking down various forms of sex-based price discrimination, etc.

Although Corn-Revere opines (citing no authority) that my petition has no legal basis, three former FCC commissioners (including a former Chairman), as well as almost a dozen broadcasting law superstars, have publicly stated that such broadcasts are probably illegal under current law. The current FCC Chairman has stated that my petition will be taken seriously and evaluated on its merits, something he would not have said if it were obviously “a publicity stunt, not a serious legal argument.” And other broadcast law attorneys who oppose the petition have been forced to admit that it will at the very least likely hold up the license renewals of the stations for a considerable period of time, impacting their credit ratings, their ability to sell or transfer assets, etc.

Given that at least one TV station lost its license based upon allegations of racism, and that the FCC previously ruled that racial slurs constituted “profanity” (which cannot be broadcast during prime time), the tremendous value of a station’s broadcast license, and my track record in persuading the FCC and many other agencies to take unprecedented steps in response to imaginative petitions many said had no chance of success, given all that the question is: Should stations ignore this new movement and continue to bet the farm (their FCC licenses), simply to be able to say “R*dskins” rather than “DC” or “Washington” when providing the sports scores or otherwise talking about this NFL team?

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FAN 40 (First Amendment News) Steve Shiffrin & Bob Corn-Revere debate “What’s Wrong with the First Amendment?”

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

For those who savor good give-and-take talk about the First Amendment, last Wednesday evening was a memorable one as Professor Steven Shiffrin debated Robert Corn-Revere with Ashly Messenger moderating. The topic: “What’s Wrong with the First Amendment?” Why that title? Because that’s the working title of Professor Shiffrin’s next book.

The New York city event was the third in a series of First Amendment salons held at the offices of the law firm of Levine, Sullivan, Koch & Schulz. The program was introduced by Lee Levine, who announced that this was the first salon done in conjunction with the Floyd Abrams Institute for Freedom of Expression at Yale Law School. The event was video cast live to the firm’s office in Washington, D.C. and to the Abrams Institute in New Haven.

Among others, those attending the event included: Floyd Abrams, Sandra Baron, John Berger, Joan Bertin, Vince Blasi, Kali Borkoski, Karen Gantz, Joel Gora, Laura Handman, David Horowitz, Maureen Johnston, Adam Liptak, Greg Lukianoff, Tony Mauro, Wes Macleaod-Ball, David Savage, David Schulz, Paul Smith, and James Swanson.

The exchange was robust as the Cornell professor took articulate and passionate exception to several of the Roberts Court’s First Amendment rulings, including United States v. Stevens, Brown v. Entertainment Merchants Association, and United States v. Alvarez – all cases in which Corn-Revere had an amicus’ hand in defending the free speech claims. No potted plant, the First Amendment lawyer fired back with facts, figures, and history as the two men debated the pros and cons of balancing vs strict scrutiny approaches to free speech decision-making. The animated discussion was always friendly and at times even funny as the two traded witty retorts.

The dialogue was enriched as Vince Blasi, Katherine Bolger, Joan Bertin, Paul Smith, James Swanson, and Floyd Abrams, among others, weighed in. As the discussion developed one could almost see minds bouncing back-and-forth as Ms. Messenger pressed the two seasoned First Amendment experts. The evening ended on a high note as Shiffrin and Corn-Revere laughed and shook hands. (Re earlier salons, see here and here.)

Coming soon: book by Seana Shiffrin 

UnknownThe Shiffrin name has long been a familiar one in First Amendment circles — a name that has both invited and provoked thought. Now comes another Shiffrin, UCLA philosophy and law Professor Seana Shiffrin, who is a scholar in her own right — someone quite attune to jurisprudential nuance.

If the case of United States v. Alvarez (2012) — the Stolen Valor case — caught your attention, and if you were intrigued by Chief Judge Alex Kozinki’s separate opinion in the case when it was before the Ninth Circuit, then Speech Matters: On Lying, Morality, and the Law (Princeton University Press, Dec. 21, 2014) by Seana Shiffrin is a book for you. And it is more, philosophically much more.

Here is the publisher’s description of the forthcoming book: “To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.”

“Drawing on legal as well as philosophical arguments, the book defends a series of notable claims — that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.”

“Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.”

Table of Contents

Chapter 1: Lies and the Murderer Next Door 5

Chapter 2: Duress and Moral Progress 47

Chapter 3: A Thinker-Based Approach to Freedom of Speech 79

Chapter 4: Lying and Freedom of Speech 116

Chapter 5: Accommodation, Equality, and the Liar 157

Chapter 6: Sincerity and Institutional Values 182

I plan to say more about this book in the coming year. Stay tuned.

UnknownNew book by Danish editor of newspaper that published cartoons of Mohammad

The author: Fleming Rose 

The book: The Tyranny of Silence (Cato Institute, Nov. 14, 2014)

Description: “When the Danish newspaper Jyllands-Posten (Viby, Denmark) published the cartoons of the prophet Mohammed nine years ago, Denmark found itself at the center of a global battle about the freedom of speech. The paper’s culture editor, Flemming Rose, defended the decision to print the 12 drawings, and he quickly came to play a central part in the debate about the limitations to freedom of speech in the 21st century. Since then, Rose has visited universities and think tanks and participated in conferences and debates around the globe in order to discuss tolerance and freedom. In The Tyranny of Silence, Flemming Rose writes about the people and experiences that have influenced the way he views the world and his understanding of the crisis, including meetings with dissidents from the former Soviet Union and ex-Muslims living in Europe. He provides a personal account of an event that has shaped the debate about what it means to be a citizen in a democracy and how to coexist in a world that is increasingly multicultural, multi-religious, and multi-ethnic.”

See Fleming Rose here re his recent appearance on The Last Word with Lawrence O’Donnell.  

1-A groups urge school district to select books “solely on sound educational grounds” Read More

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FAN 38.1 (First Amendment News) FIRE bursts on out in NYC — Free speech celebration draws committed crowd

FlameandFIRE-390x195EXPLOSIVE. That is as good as any a word to describe the high energy level at the 15th Anniversary dinner of FIRE (Foundation for Individual Rights in Education), the group founded by Harvey Silvergate and  Alan Charles Kors in 1999. People were yelling “FIRE” in the crowded hall all evening long.

Some 280 people came together on Thursday evening last week at the Mandarin Oriental Hotel in NYC. They gathered to show their enthusiastic support for this non-partisan free speech group. Contrary to the mood of our times, liberals, conservatives and libertarians joined together in common cause to endorse FIRE’s campaign to contest unconstitutional campus speech codes.

Guests included Radley BalkoJoan BertinPaul BloomRobert Corn-Revere, Alan Dershowitz, Norman DorsenDonald DownsJoel Gora, Jonathan HaidtWendy Kaminer, Roger KimballMichael McConnellKirsten Powers, Lenore SkenazyNadine Strossen, Matt Welch, and Karen Gantz Zahler, among others.

Morgan Freeman

Morgan Freeman

Students speak out

Aided by film clips on two big screens (see video here), four student activists who challenged campus speech codes spoke of their experiences. They were: Merritt Burch, Morgan Freeman, Chris Lee, and Robert Van Tuinen.

Two Speakers: A First Amendment Lawyer & a Cognitive Scientist 

There were two speeches, which further fired up the audience. The first speech was by the noted First Amendment lawyer Floyd Abrams. His remarks were entitled “Free Speech is in Trouble on Campus.” Here is an excerpt:

[O]nly FIRE … would think of and then respond to the explosion of unconstitutional speech codes that limit student and faculty speech as it did just last month by threatening over 300 colleges with litigation challenging such rules. And only FIRE would do the detailed work of reading each speech code so it could announce that 58% of public colleges and universities are, right now, acting unconstitutionally in limiting sometimes discomforting but First Amendment protected speech, on campus, and then follow that up by actually commencing lawsuits in this area. .  . . FIRE, from the day it was created, has understood this and sought to expose it and deal with it. We are in the midst of an epidemic and FIRE is providing an antidote. 

→ Steven Pinker (the  noted experimental psychologist, cognitive scientist, linguist, and popular science author and Harvard professor) spoke after Abrams.  His remarks were titled “Three Reasons to Affirm Free Speech.” Here is an excerpt from his remarks:

Free speech is the only way to acquire knowledge about the world. Perhaps the greatest discovery in human history—one that is logically prior to every other discovery—is that all of our traditional sources of belief are in fact generators of error and should be dismissed as sources of knowledge. These include faith, revelation, dogma, authority, charisma, augury, prophesy, intuition, clairvoyance, conventional wisdom, and the warm glow of subjective certainty.

Greg Lukianoff — The FIRE Man

Greg Lukianoff

Greg Lukianoff

He is like no other — Lukianoff, FIRE’s president, is a man full of ideas, energy, and the smarts to make it all work. Author, pamphleteeractivist, and Stanford Law graduate, this 40-year-old who grew up in Danbury, CT is changing the world around him by bringing the First Amendment to the doorstep of college bureaucrats bent on squelching freedom of speech and conscience. And Lukianoff and FIRE are winning; they have prevailed (either by a court victory or a settlement) in every one of the challenges they have brought — and they are busily preparing many more. Beyond the courtroom, Lukianoff regularly takes his free-speech message to the pubic, either by testifing before Congress or appearing on the O’Reilly Factor, the CBS Evening News, or by publishing an op-ed in this or that newspaper. Regardless of one’s ideological stripes, he is always prepared to make a strong case for the First Amendment.

Meanwhile, Greg Lukianoff and his colleagues at FIRE have cases pending against the following six colleges:

  1. University of Hawaii at Hilo
  2. Western Michigan University
  3. Chicago State University
  4. Citrus College
  5. Iowa State University, and
  6. Ohio University

 Full disclosure: I attended as a guest of the Davis Wright Tremaine law firm, which works with FIRE in litigating campus speech code cases.

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

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

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

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

Panel speakers

 Registration

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

 CLE Credit 

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

* * * * 

 Related Articles

→ Upcoming AALS Panel Discussion

Petition to Watch 

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

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

Dahlia Lithwick

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

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

Later in the same essay, Lithwick adds:

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

Three Replies Read More

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

UPDATED: 10-24-14

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

Review Granted

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

Review Pending

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

Review Denied

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

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Erin Murphy arguing in McCutcheon case

Erin Murphy arguing in McCutcheon case

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

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

5 Books

36 Scholarly Articles or Blog Posts  Read More

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

Robert Corn-Revere

Robert Corn-Revere

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

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

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

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

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

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

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

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

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

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

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

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

By way of a shameless plug for my coauthor:

INFLUENTIAL VOICES  

David Skover

David Skover

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

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

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

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

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

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

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

Introduction by Dean Annette E. Clark 

 

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

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

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

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

Harriet Fleischl Pilpel

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

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

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

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

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

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

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

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

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

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

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

Judge Oliver Wendell Holmes, Jr.

Judge Oliver Wendell Holmes

46 States & 209 statutes 

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

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

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

Re Freedom of Expression

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

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

422 State Court Opinions Read More