Tagged: First Amendment law

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FAN 28.1 (First Amendment News) — The First Amendment in the Era of ISIS

This is beyond anything we’ve seen.

                                  – Chuck Hagel, Aug. 21, 2014

The Threat

→ Defense Secretary Chuck Hagel told reporters at the Pentagon: “They are an imminent threat to every interest we have, whether it’s in Iraq or anywhere else.”

Secretary of Defense Chuck Hagel

Secretary of Defense Chuck Hagel

“Asked if the hardline Sunni Muslim organization posed a threat to the United States comparable to that of the attacks of Sept. 11, 2001, Hagel said it was ‘as sophisticated and well-funded as any group we have seen.’”

→ According to a report in The Hill, ISIS, also known as Islamic State, “has long threatened to carry out a catastrophic attack on American soil, with a spokesman recently boasting that the militant group would fly its flag over the White House.”

Senator Jim Inhofe (R-Okla.) Now is in “the most dangerous position we’ve ever been in.” ISIS members, he added, are “rapidly developing a method of blowing up a major U.S. city and people just can’t believe that’s happening.” 

imagesRecruiting in the U.S.? 

→ “The director of the FBI visited Colorado this week and detailed how the terror organization ISIS is recruiting Americans to take up their cause.It’s not just the recruitment of Americans that’s concerning to the FBI, it’s the method of recruitment — the Internet. FBI Director James Comey said how they are recruiting new members is getting the attention of the U.S. government.” [Source: CBS News]

James Comey: “We have seen an emergence since I was last in government of the people we call home grown violent extremists.” [Source: CBS News]

The Law

The Newseum in Washington, D.C.

The Newseum in Washington, D.C.

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” – Schenck v. United States (1919)

→ See also: Dennis v. United States (1951) (“In each case [courts] must ask whether the gravity of the `evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”)

→ See also: Yates v. United States (1957) (re “advocacy of actions” versus advocacy in the abstract).

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969)

 Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. . . .  Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not ‘necessary to further that interest.’ The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. . . .  We are convinced that Congress was justified in rejecting that view.  . .  . We see no reason to question Congress’s finding . . . ” – Holder v. Humanitarian Law Project (2010)

→ See also: Geoffrey Stone. Perilous Times: Free Speech in Wartime (2004)

→ See also Richard A. Posner, Not a Suicide Pact: The Constitution in Time of National Emergency (2006) and Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007)

→ See generally “Symposium, Free Speech in Wartime,” 36 Rutgers Law Journal 821-951 (2005) (contributors: Geoffrey Stone, Earl Maltz, Ronald Collins & David Skover, Adrian Vermeule, Leonard Niehoff, Floyd Abrams, David Strauss, Nadine Strossen, Eric Foner, David Rabban, and Raymond Solomon).

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FAN 28 (First Amendment News) — The Demise of Stare Decisis?

Professor Randy Kozel

Professor Randy Kozel

Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools.

But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.)

Now consider this: “[W]ithin the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.”

So contends Notre Dame Law School Professor Randy Kozel in a draft of an article titled “Second Thoughts About the First Amendment.” As his research reveals, “in recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.”

And why? What accounts for this purported demise of stare decisis? “The best explanation for this phenomenon,” say Professor Kozel, “is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.”

And is all of this a problem? Here is how the former Kozinski-Kennedy law clerk turned law professor answers that question: “Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.”

With a guarded measure of nuance, Professor Kozel adds: “For some, this state of affairs may be unobjectionable. There is no denying that robust expression is a core tenet of American legal and political culture. Still, there is something to be said for stare decisis, even when continuity comes at a hefty price.”

→ Of course there is more, much more in this thoughtful work-in-progress. I urge readers to take a look at it and send along your thoughts. Who knows, it might even make for an interesting topic for a future First Amendment salon?

Speaking of that salon, I may soon have some news on that front. Stay tuned.

Another great quote from Justice Jackson

[T]he very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.

– Justice Robert Jackson, in-chambers opinion in Williamson v. United States (1950):

→ Hat tip to Eugene Volokh

Two New Books Read More

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Now may be the moment . . .

Heed their rising voices.

heed-rising-voicesIn light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) – The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

  1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
  2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
  3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
  4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

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FAN 27 (First Amendment News) — Humanitarian Law Project petition before High Court

Seventeen and a half years for translating a document? Granted, it’s an extremist text.                                                                                      – David Cole

Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all.                             – Rachel Levinson-Waldman

The case is: Mehanna v. United States.

Tarek Mehanna

Tarek Mehanna

The issue is: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

→ Summary of relevant facts as stated by the appellate court: “In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

“The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa’ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa’ida-generated media and materials supportive of al-Qa’ida and/or jihad.”

→ The charges against the Defendant included:

  • one count of conspiracy to provide material support to al-Qa’ida;
  •  one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. § 956 and  § 2332
  • one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. § 956 and § 2332
  • and one count of conspiracy to kill persons in a foreign country

→ ACLU of Massachusetts press release re trial verdict: “Mehanna Verdict Compromises First Amendment, Undermines National Security,” Dec. 20, 2011: “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.”

Op-Ed Commentaries 

On Appeal before First Circuit

In an opinion by Judge Bruce Selya, a three-judge panel of the First Circuit denied the Defendant Tarek Mehanna‘s First Amendment challenge. Here is how Judge Selya (former chief judge of the United States Foreign Intelligence Surveillance Court of Review) began his opinion:

Terrorism is the modern day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

And here is how Judge Selya closed his opinion in ruling against the Defendant Tarek Mehanna:

Cases like this one present a formidable challenge to the parties and to the trial court: the charged crimes are heinous, the evidentiary record is vast, the legal issues are sophisticated, and the nature of the charges ensures that any trial will be electric. In this instance, all concerned rose to meet this formidable challenge. The lawyers on both sides performed admirably, and the able district judge presided over the case with care, skill, and circumspection. After a painstaking appraisal of the record, the briefs, and the relevant case law, we are confident — for the reasons elucidated above — that the defendant was fairly tried, justly convicted, and lawfully sentenced.

→ Amici on behalf of the Petitioner in the First Circuit included:

  • Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts
  • Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights
  • Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National, Association of Criminal Defense Lawyers
  • E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East
Judge Bruce Selya

Judge Bruce Selya

The government was represented by Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice.

→ Sabin Willett is the counsel of record representing the Defendant Tarek Mehanna in his petition to the Court. In his petition, Mr. Willett’s First Amendment arguments include the following:

  1. “In Humanitarian Law Project, the Court addressed the important question of whether speech could be criminalized as provision of material sup- port in the form of a “service” to an FTO. Deciding that such speech can be unlawful when it takes the form of directly-interactive teaching, the Court interpreted §2339B as imposing criminal liability for speech that is a “service” if that speech is sufficiently “coordinated” with the FTO. This Court did not further define ‘coordination,’ nor hold that all “coordinated” speech could be criminalized consistent with the First Amendment. . . . Outside the narrow factual context of Humanitarian Law Project, the legal contours of ‘coordination’ remain a riddle. The word does not appear in any relevant section of the statutes. The decision uses “coordination” to describe the specific conduct found unlawful in that case, but provides no general definition, and leaves open that some levels of ‘coordination’ may be lawful.”
  2. “Petitioner argued below that a constitutional definition of ‘coordination’ requires an inquiry into the relation of the speaker to the FTO, and cannot be based in the content of his speech. If an FTO directs the defendant to write, the defendant’s compliance might provide a service that the Constitution does not protect, but that service would lie in compliance, not content.”
  3. Certain counts of the Petitioner’s conviction violated his right of association.

→ The government’s brief in opposition can be found here.

Historical Aside re Humanitarian Law Project

The case for the government was argued by Solicitor General Elena Kagan

The case for the Humanitarian Law Project was argued by Professor David Cole

Transcript of oral argument here

Interview with Robert Post re his latest book Read More

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FAN 25.1 (First Amendment News) — Mass. Gov. signs abortion buffer zone bill

The bill, titled an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, was signed earlier today by Massachusetts Governor Deval Patrick.

Pro-choice demonstrators in front of Supreme Court

Pro-choice demonstrators in front of Supreme Court

The law, which is effective immediately, allows a police to order a person who “impedes” access to a reproductive health facility to stand at least 25 feet away from the entrance (or driveway) of the facility. The officer’s order will remain in place for eight hours or until the facility closes for the day (whichever is earlier). The law defines “impede”  as making it impossible or very difficult to access the clinic. If the person does not obey the order, he or she will face criminal penalties (a fine and potential jail time).  The penalties increase with each transgression. There are also penalties for threatening to harm or harming a person going to or from the facility and penalties for attempting to stop a car from accessing or leaving the facility.

The new law comes in the wake of the Supreme Court’s recent ruling in  McCullen v. Coakley, which struck down a 2007 Massachusetts buffer zone law as violative of the First Amendment.

In a prepared statement, Governor Patrick said: “I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm.”

“This bill,” said Attorney General Martha Coakley, “takes an important step toward protecting the rights of women and public safety around reproductive health facilities. We now have new tools to help ensure access to these facilities free from intimidation and threats.”

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FAN 25 (First Amendment News) — High Court again asked to intervene in state judicial elections

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Lanell Williams-Yulee

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Williams-Yulee v. The Florida Bar. 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. (See here re video and transcript of oral arguments in Florida Supreme Court.)

A petition for certiorari has 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.

→ Flashback: FAN 15, “Free Speech & Judicial Elections: The Return of Kaus’ Crocodile,” May 14, 2014

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

Offending Mass-Mail Solicitation Letter 

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

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

Dear Friend:

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

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

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

(Source: here)

See YouTube video of TV political ad here.

State Judicial Elections 

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

Conflicts in Lower Courts  Read More

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FAN 24 (First Amendment News) — Stephen Barnett: The Little-Known Man Behind the Well-Known Words

We live by falsehoods. They feed the myths of the great figures whose words are etched in our collective memory as if they were tablets from on High. We know those words; we are moved by those words; and those words define who we are or yearn to be.

Words fitly selected and artfully strung together can change minds and even alter the arc of history. Take, for example, the following words:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

Of course, they are the words of Justice William Brennan — the famous words from his celebrated opinion in New York Times Co. v. Sullivan.

Stephen Barnett

Stephen Barnett

Those words have had a profound impact on the direction of American law and culture. Their importance transcends the mere holding of the case and all the black-letter law that followed them. Talk about doctrine as much as you will; stress the importance of this or that theory of constitutional interpretation as you like; and laud or condemn either judicial activism or judicial restraint as you see fit; but in the end, nothing really matches a tantalizing metaphor or an alluring string of words.

This brings me to my point: For all the kudos that have been and continue to be bestowed on him, the naked fact is that Justice Brennan did not author the words that further enhanced his First Amendment reputation. Let me repeat: he did not write the words that made him yet more famous in free speech circles. One of his law clerks did.

His name? Stephen R. Barnett (1935-2009). Before venturing further, let me say this: I know, this is not news. Seth Stern and Stephen Wermiel flagged this historical point on page 224 of their comprehensive biography of Justice Brennan. Though Tony Lewis did not mention this particular fact in his Make No Law: The Sullivan Case and the First Amendment (1991), he did, nonetheless, mention young Barnett and his recollections of the internal history of the case.

While it is certainly true that Stern and Wermiel shed light on the Barnett authorship, the fact is that Professor Barnett’s great contribution to First Amendment history is otherwise ignored in virtually all academic literature, including casebooks.

→» So, here is the news part, if I may take the liberty: Let’s stop the charade — if judges insist on having their law clerks write their opinions, then credit for those opinions or for notable passages within them must be allowed, if only after a designated period of time not to exceed twenty years after the termination of the clerkship. Though I might be open to reconsidering the matter, for now I am inclined to say that confidentiality agreements should be deemed contrary to public policy if they deny that possibility. I say this as a former law clerk who continues to respect fair norms of confidentiality. (Of course, in my case it was easy since Justice Hans Linde, not his law clerks, wrote all of his opinions.)

Justice Brennan was a great jurist even if he did not write the famous passage from Sullivan or even if he did not author NAACP v. Button (his clerk Richard Posner did). That said, let’s raise a glass to Steve Barnett and let’s credit him whenever we quote that “robust” language from Sullivan.  

» One more thing, by way of a related point — You know these words: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The author? Justice Oliver Wendell Holmes, of course, writing in Schenck v. United States (March 3, 1919).

But hold on. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”:

‘Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” 

John Fontana, “12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002), discussed in Ronald Collins, The Fundamental Holmes  (2010), p. 234.

California Voters asked to weigh in on Citizens United Read More

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FAN 23 (First Amendment News) — Paul Smith & Erin Murphy Debate Campaign Finance Law

Paul Smith & Erin Murphy

Paul Smith & Erin Murphy

It was quite an evening as Paul Smith and Erin Murphy went back-and-forth in a lively exchange discussing the McCutcheon case, campaign financing law, and the First Amendment. Professor David Skover moderated as the two one-time case foes — Erin represented Shaun McCutcheon & Paul filed an amicus brief on the other side — debated the pros and cons of government regulation. In his own casual, confident, and witty way, Paul pushed his views while Erin took it all in stride, always calm, cautious, and pointed. The exchange took place at the Washington, D.C. offices of Levine, Sullivan, Koch & Schulz (there was a live videocast feed to the firm’s New York office). This was the latest First Amendment salon. The discussion ranged from the technical to the philosophical as the two advocates and the discussants teased out various arguments. In the end, Smith and Murphy came together with big smiles and a firm handshake (the pair worked on the same side in the recently decided Aero case.)

Among others, the discussants included: Lee LevineBenjamin GinsbergLaura Handman, James Swanson, Joel Gora, Adam Liptak, David Savage, Jess Bravin, Stephen WermielKatherine Bolger, and Jeff Bowman (former AA to FEC Chairman Scott Thomas).

John Seigenthaler (1927-2014) – the Man Who Loved Light 

“His commitment to the First Amendment was unflagging.” Ken Paulson

“A champion of the First Amendment, giant of journalism,  and a wonderful human being.”              – Judy Woodruff 

We lost John Seigenthaler last week — he was 86. I was privileged to have worked with John while I was at the Newseum’s First Amendment Center, first in Arlington, Va. and then in Washington, D.C. John founded the Center in 1991.

In a recent USA Today column, Ken Paulson (John’s friend and longtime colleague) observed:

John Seigenthaler

John Seigenthaler

“John was . . . the first editorial page editor of the then-new USA TODAY in 1982, developing the most balanced opinion pages in the country. For every USA TODAY editorial there would be a countervailing view. John embraced light instead of heat.”

“He was fueled by his passion for the First Amendment, the sense that every voice has value. He liked to tell the story of a liberal woman who found conservative radio deeply offensive. He told her ‘whenever I want to hush Rush, I turn the knob.’ With a pained expression she responded, ‘Then I get G. Gordon Liddy.’ John would roar with each retelling.”

“In 1991 John retired from his newspaper role to found the First Amendment Center. It was a role he was born to. Long an advocate for the underdog, John was a passionate champion for the five freedoms that few Americans knew much about and inevitably took for granted.”

Gene Policinski, a friend who worked with John since 1981, offered this life assessment of his colleague: “John’s passion for the First Amendment was driven by a belief in equality and in the ‘marketplace of ideas.’ He had a lifelong commitment to the idea that this nation would not just endure but would prosper if its citizens could freely discuss, debate, and decide public issues without the burden of the heavy hand of government.” (see here, too)

→ For more about John and his remarkable life, see:

High Court Agrees to Hear Sign Ordinance Case  Read More

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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 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: