Tagged: First Amendment

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FAN 16.3 (First Amendment News) — Unanimous Judgments: The Roberts Court’s Record in First Amendment Free Expression Cases

Earlier today the Supreme Court handed down its ruling in Wood v.Moss.  The vote was 9-0 and the opinion was authored by Justice Ruth Bader Ginsburg.  In part, the Court held that

Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the gov- ernment actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley . . . . The fundamental right to speak, however, does not leave people at liberty to publicize their views “ ‘whenever and however and wherever they please.’ ” United States v. Grace . . . In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, . . . , which involved alleged Fourth Amendment violations, extends to First Amendment claims . . . .

Accordingly, the Court ruled that the Secret Service agents were entitled to immunity; the Ninth Circuit was reversed. (See Professor Ruthann Robson’s comments on the case here.)

Beyond the qualified immunity point of this opinion, what is interesting is that in Wood the Court denied a First Amendment claim by a unanimous vote. When it comes to free expression First Amendment cases, the Roberts has consistently been unanimous in cases in which the claim was denied. In other words, the only time the judgment is unanimous in such cases is when a free speech claim is rejected. Wood is but the latest case in this string of First Amendment opinions.

Unanimous Judgments Denying First Amendment Expression Claim

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0] [3rd Cir., reversed & remanded]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0] [Wash. S. Ct., vacated & remanded]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0] [2nd Cir., reversed]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0] [10th Cir., reversed]
  5. Locke v. Karass (2009) [vote: 9-0] [First Cir., affirmed]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0] [8th Cir., affirmed in part, reversed in part & remanded]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0] [Nevada S. Ct., reversed & remanded]
  8. Reichle v. Howards (2012) [vote: 8-0] [10th Cir., reversed & remanded]
  9. Wood v.Moss (2014) [vote: 9-0] [9th Cir., reversed]

Conclusion

Of the Roberts Court’s 32 free expression First Amendment opinions, 28% were decided by a unanimous vote and against the free expression claim being asserted.

See also: FAN 11.3: The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

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FAN 16.1 (First Amendment News) — RNC Lawsuit Challenges Soft Money Restrictions in McCain-Feingold

Press Release (complaint available here)

Today, the Republican National Committee (RNC) and the Republican Party of Louisiana (LAGOP) filed suit in federal court challenging federal soft-money restrictions in the McCain-Feingold campaign finance law that prevent political parties from having their own independent-expenditure accounts and that prevent state and local political parties from using soft money — i.e., state-regulated money — for voter registration and get-out-the-vote activities.
        The Federal Election Commission (FEC) has recognized that political committees may have independent-expenditure accounts, which may receive unlimited contributions for making independent expenditures about federal candidates, and may also have a separate account to make contributions to candidates. Contribution accounts are subject to a “base contribution limit,” usually $5,000 annually, restricting how much an individual may contribute to them.
        However, the FEC prohibits political parties from having independent-expenditure accounts, which means that the RNC’s independent expenditures must be funded by contributions limited to $32,400 a year.
        In the lawsuit, Republican National Committee v. FEC, the RNC and Chairman Reince Priebus want to establish an RNC independent-expenditure account and to solicit unlimited contributions to it. However, political parties are currently prohibited from having independent-expenditure accounts and national political party officers are limited in how much they may solicit for an independent-expenditure account — only up to the base contribution limits — even though base limits on contributions to independent-expenditure accounts are unconstitutional.
        The Republican Party of Louisiana, and its Chairman Roger Villere, also are suing in order to establish and to solicit unlimited contributions to the LAGOP’s own independent-expenditure account.
        In addition, the LAGOP has joined with two Louisiana local political parties, Jefferson Parish Republican Parish Executive Committee and Orleans Parish Republican Executive Committee, to seek to do independent “federal election activities” with Louisiana state-regulated money (often called “soft money”),  instead of so-called “federal funds” (often called “hard money”). Federal election activity includes voter-identification, voter-registration near federal elections, and get-out-the-vote activities, as well as any public communications that merely mention a federal candidate. State and local parties must currently use federal funds even for independent federal election activity. Federal funds are subject to burdensome regulations that prevent many state and local political parties from engaging in federal election activity.
        The controlling legal principle undergirding all the suit’s claims is that the Supreme Court has held in Citizens United v. FEC and McCutcheon v. FEC, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” As a result, it is unconstitutional to impose contribution limits on independent expenditure activities – which has given rise to independent-expenditure accounts. The same reasoning applies to political parties’ independent campaign activities.
        In the alternative, the Plaintiffs ask the court to declare all soft money provisions of McCain-Feingold to be unconstitutional on their face, reversing McConnell v. FEC, since there is no evidence of quid-pro-quo corruption where a political party sought to corrupt their own candidates. McCutcheon v. FEC recently decided that only quid-pro-quo corruption can justify contribution limits and McConnell upheld the soft money bans despite no evidence of quid-pro-quo corruption, so McConnell was wrongly decided.
        James Bopp, Jr., lead attorney for Plaintiffs comments:
After Citizens United, there is no justification for restricting funds that political parties receive for independent campaign activity. In an era when independent-expenditure accounts can solicit unlimited contributions and spend enormous amounts to influence political races, political parties are constitutionally entitled to compete equally with them with their own independent campaign activity. Political parties are an important part of our political system and success in this case will help empower them again.

May 23, 2014
Contact: James Bopp  (see link above) 

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FAN 15.2 (First Amendment News) — Justice Scalia on the First Amendment & Legal Education

In a recent speech entitled “Reflections on the Future of the Legal Academy,” Justice Antonin Scalia had a few things to say about legal education and the First Amendment. The remarks were made on May 11, 2014 at the William & Mary Law School, this by way of a commencement address. The relevant passage is:

In more than a few law schools, including some of the most prestigious (the University of Chicago, for example), it is possible to graduate without ever having studied the recent First Amendment. Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?

[Hat tip to William Baude]

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FAC 4 (First Amendment Conversations) – Steve Shiffrin, the Dissenter at the First Amendment Table

My [next] book calls upon you and others to recognize that your religion – your speech worship – does a lot of damage, and you might do well to contemplate the possibility that the lack of free speech idolatry in other Western countries might be leading to more sensible conclusions (except when it comes to dissent where they are somewhat worse than we are).

Steven H. Shiffrin is the Charles Frank Reavis Sr., Professor of Law at Cornell Law School. He is the author of several books including: The Religious Left and Church-State Relations (Princeton University Press, 2009), Dissent, Injustice, and the Meanings of America (Princeton University Press, 1999), and The First Amendment, Democracy, and Romance (Harvard Press, 1990). He is the coauthor of Constitutional Law (11th ed., 2011) and The First Amendment (5th ed., 2011), both of which are widely used casebooks in the field. He is also a regular contributor to the “Religious Left Law” blog (and is active on Twitter and Facebook). From time to time, he files amicus briefs in First Amendment cases such as the recent Elane Photography case, which the Supreme Court declined to review. And he is a frequent speaker on the First Amendment lecture circuit.

In 2007, the Loyola of Los Angeles Law Review dedicated an entire issue to honor Steve. In that symposium, the late C. Edwin Baker (a noted First Amendment scholar in his own right) labeled Steve as “one of the country’s three or four top First Amendment scholars.” He went on to add: “I consider Steve the best in terms of possibly the most important criterion: being right about what really matters. On that ground, his achievement is truly worthy of honor.”

Steve Shiffrin

Steve Shiffrin

Steve is also a dear and longtime  friend. That friendship dates back to our days in law school when Steve first introduced me to the works of Harry Kalven, the preeminent  free speech scholar of his time. Speaking of law school, Steve’s student law review Note was cited approvingly by Justice Brennan in Fisher v. United States (1976). It was but one of several early signs of the high caliber of his scholarship. After law school he served as a law clerk to Judge Warren Ferguson on the United States District Court, Los Angeles (1975-76). 

Steve, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our FAC readers. I’d like to ask you some tough and some easy questions, all in the spirit of robust discussion between friends.  

Question: When I think of your work — beyond its rigorous analytical contours, that is — I always think of the dissenter, that lone wolf who howls at the moon for reasons unknown to or unpopular with the rest of us. Why this fascination with rogues or “moral lepers” as you tag them?

Answer: I have argued that the protection of dissent should occupy a special place in the First Amendment primarily, but not exclusively, because it is crucial to the combatting of injustice. I would think this even if I did not admire dissenters. But I do hold a special admiration for those who swim against the current and challenge existing customs, habits, institutions, and authorities. I do not think of dissenters as moral lepers (though some of them are). And I do not think dissent should always be protected. But I do think the practice of dissent should be regarded as especially valuable.

Question: What is your sense of Edward Snowden? Do you consider him a dissenter, of sorts? And do you believe that the First Amendment should protect him if he were to be prosecuted for leaking classified documents?

Answer: The First Amendment should often protect those who blow the whistle on government misconduct even if documents relating to that misconduct are classified. Much of the conduct disclosed by Snowden was rightly disclosed. I am not sure if all of it was. I find it disturbing that the government welcomed the debate instigated by Snowden even though it attempted to prevent the debate from occurring and that it seeks to prosecute Snowden for creating it. In particular, the desire to prosecute Snowden is disturbing when you recognize that government for decades has selectively revealed classified information in pursuit of official or partisan ends.

Question: In your Dissent book, you wrote: “if content neutrality is the First Amendment emperor, the emperor has no clothes.” Given the centrality of that doctrine in our current First Amendment decisional law, that seems to be a striking (and that is the word) assessment. Can you elaborate a bit on your thoughts concerning this?

Answer: The First Amendment prevents content discrimination except when it doesn’t. Many exceptions to First Amendment protection depend upon content, e.g., some forms of defamation, sexual speech, advocacy of illegal action. The Court has no principled justification for using strict scrutiny regarding some forms of content discrimination and less scrutiny for others. A theory of content neutrality does nothing to explain its selective use.

The Values of Free Speech vs the Value of Democracy

Question: In 1990 you wrote: “there is something quite odd about suppressing speech in the name of democracy.” Forgive me, but in today’s vernacular that could almost be the mantra of, say, the libertarian Cato Institute or of Shaun McCutcheon, the petitioner in McCutcheon v. FEC. What is your response to that?

Answer: A rhetorical joust in one context does not work in another. A politically centered theory of the First Amendment rooted in democratic theory leads to the conclusion that much non-political speech is not protected because it is only marginally related, if at all, to the democratic dialogue. Contributing to democratic dialogue should not be a necessary condition for First Amendment protection. Suppressing literature, music or art or private non-political speech in the name of democratic theory is entirely unpersuasive. At the same time, the values of free speech can be outweighed by the value of democracy. The Court’s insensitivity to this and its legalization of forms of bribery in Buckley, Citizens United, and McCutcheon is an embarrassment to the country and a scandal.

Question: As you know, the ACLU argued for the First Amendment claims sustained in Buckley v. Valeo (1976), the case in which Senator James Buckley and former Senator Eugene McCarthy challenged certain provisions of the 1974 Amendment to the Federal Election Campaign Act. Do you think that the ACLU and the majority got in right in Buckley?

Answer: No. The Court left human beings free to spend unlimited sums of money with the intent and effect of advancing or opposing political candidates and by implication it left corporations free to do the same so long as they did not use explicit language of endorsement or opposition to a particular candidate. Democracy is not consistent with the kind of preferential access and influence that the wealthy buy by spending large sums of money in this way. The victory for free speech is a significant democratic loss.

Question: Would it be fair to say, at least generally speaking, that your view of free expression under the First Amendment turns on power and those who possess it versus those who do not? What prompts this question is a passage in your Romance book wherein you wrote: “From the romantic perspective, the regulation of the wealthy, the powerful, and the large corporate conglomerate does not ordinarily inspire concern  [about whether such individuals or groups] are in danger of being stifled or that individual self-expression is at risk” By contrast, you add, the “Schencks, the Carlins, [and] the O’Briens” do need such protection. Hence, “from the romantic perspective, it is clear: the powerful rarely need protection; dissenters often do.” Putting aside for the moment the fact that the late comedian George Carlin was a man of means, does your view of free speech look at wealth and power as important factors in deciding whether to protect speech? Read More

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FAN 13.3 (First Amendment News) New Study Reveals Politics of Justices’ Protection of Free Speech

Over at the New York Times Adam Liptak has just posted a news item entitled “In Justices’ Votes, Free Speech Often Means ‘Speech I Agree With.” Liptak’s story is based on a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee Epstein, Christopher M. Parker, & Jeffrey A. Segal.  Here is the abstract:

In contrast to the traditional political science view, which holds that justices on the left are more supportive of free speech claims than justices on the right, and in contrast to a newer view among legal academics that justices on the right are more supportive of free speech claims than justices on the left, we use in-group bias theory to argue that Supreme Court justices are opportunistic supporters of free speech. That is, liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative).

A two-level hierarchical model of 4,519 votes in 516 cases confirms the in-group bias hypothesis. Although liberal justices are (overall) more supportive of free speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speakers’ ideological grouping, and not solely an underlying taste for (or against) the First Amendment.

Below is a revealing chart summary of the study (sans the notes to the asterisks). Given the importance of this study, I plan to post more on this work after I have had more time to review it.  Meanwhile, here is a link with additional information concerning the study.  Screen Shot 2014-05-05 at 3.25.12 PM

 

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FAN 13.2 (First Amendment News) — Indiana High Court Affirms Right to Criticize Judge

The CaseBrewington v. Indiana (No 15S01-1405-CR-309, May 1, 2014)

The Vote: Unanimous

The AuthorJustice Loretta H. Rush

The LawyerJames Bopp, Jr. (for Defendant)

Facts: (as stated in Court opinion)

In his blog posts, Defendant’s criticisms of the Judge were rather generalized—contending that the Judge “has abused my children” or otherwise done “mean things to my children and my family,” was guilty of “criminal conduct,” or was simply “crooked,” or “a nasty evil man.” But he also posted a copy of his August 24, 2009 “Motion to Grant Relief from Judgment and Order” online  in which he alleged that the Judge:

Justice Loretta Rush

Justice Loretta Rush

  • “has a substantial conflict of interest as[ he] was aware that Dr. Connor was not licensed to practice psychology by the State of Indiana when [he] had appointed Dr. Connor to perform psycho- logical services for an Indiana Court,”
  • “conducted himself in a willful, malicious, and premeditated manner in punishing the Respondent for attempting to protect the parties’ minor children, the Counties of Ripley and Dearborn, and the States of Indiana and Kentucky from the actions of Dr. Edward J. Connor by terminating the Respondent’s parental rights,”
  • “robbed [Defendant’s] parenting rights as revenge for fighting injustice,”
  • “caused irreparable damage to the Respondent’s children in the Court mandated child abuse [sic]” by “illegally eliminating their father from their lives out of the Court’s self-interest,” and
  •  used “child abducting tactics” by issuing the divorce decree.

In the motion, Defendant also threatened to “fil[e] criminal complaints with the Sheriff’s department and Prosecutor’s office for child abuse,” and to contact government officials, local churches and schools, social service agencies, and community organizations “in an attempt to contact other victims and to help bring public awareness to the atrocities that take place in the Ripley and Dearborn County Courts.” And he concluded the motion by seeking relief “due to fraud” by the Judge, the Doctor, and opposing parties and counsel—and echoing his previous efforts seeking Judge Taul’s recusal, he further demanded “the immediate resignation of Judge James D. Humphrey from the bench for the horrendous crimes committed against the Respondent and his children.”

Judgment

The First Amendment “is . . . certainly broad enough to protect Defendant’s ill-informed—but by all indications, sincere—beliefs that the Judge’s child-custody ruling constituted “child abuse” or “child abducting,” and that the ruling was based on improper motives. The Court of Appeals erred in relying on Defendant’s overheated rhetoric about “child abuse,” or the falsity of that characterization, to affirm his conviction for intimidating a judge. Even if Defendant’s “child abuse” and other statements about the Judge could be understood as assertions of fact, not hyperbole, they are protected by the First Amendment because there is no proof of actual malice.”

While his criticism of the judge was protected, the Court concluded that other statements made by the Defendant constituted “true threats” and were thus unprotected under the First Amendment. Said the Court:

It is every American’s constitutional right to criticize, even ridicule, judges and other parti- cipants in the judicial system—and those targets must bear that burden as the price of free public discourse. But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criti- cism. Defendant’s true threats against the Judge and the Doctor therefore find no refuge in free speech protections. To the contrary, they undermine the core values of judicial neutrality and truthful witness testimony on which every aggrieved citizen depends.

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FAN 12.3 (First Amendment News) Floyd Abrams Institute Sponsors Upcoming Conference

The Floyd Abrams Institute for Freedom of Expression is sponsoring an upcoming First Amendment conference at Yale Law School. This will be the the second Freedom of Expression Scholars Conference, which is hosted by the Information Society Project (ISP) at the Law School. The event is scheduled for May 3-4, 2014.abrams-logo

“The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy. The conference offers participants an opportunity to receive substantive feedback through group discussion. Each accepted paper will be assigned a discussant, who will lead discussion and provide feedback to the author. Participants will be expected to read papers in advance, and to attend the entire conference.”

The array of topics for the conference includes:

  • Constitution Betrayed: Free Expression, the Cold War, and the End of Democracy
  • First Amendment Challenges to Economic Regulation in the Jehovah’s Witness Cases       
  • Free Speech Constitutionalism (see also here)
  • National Security Letters and the First Amendment, Brief of Amici Curiae Floyd Abrams Institute and First Amendment Scholars, In re Nat’l Sec. Letter (9th Cir. filed Mar. 31, 2014) (Brief currently under seal)
  • Old School/New School Speech Regulation (see also here)
  • Product Redesign as Commercial Expression: Antitrust Treatment of Speech and Innovation
  • Revenge Porn (see also here)
  • The Freedom not to Think
  • Unreasonable Access: Disguised Issue Advocacy and the Role of Broadcasters in Shaping Public Discourse
  • When Government Lies: The Constitutional Implications of the Government’s Deliberate Falsehoods
  • Why Data Privacy Law is (Mostly) Constitutional (see also here)

    logo (4)

    ISP Logo

Read More

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FAN 12.2 (First Amendment News) – Justice Altio on the First Amendment

Over at The American Spectator, Matthew Walther (an assistant editor there) has a very informative article titled Sam Alito: A Civil Man – The pleasure of Justice Alito’s Company. It is an overview of the Justice’s career on the Court and before. The article is well flavored with revealing snippets from an interview Mr. Walther did with the Justice. Anyone interested in the Court will want to read this article with its rich mix of the personal and professional side of the Justice.Samuel-Alito-articleInline

I have taken the liberty of excerpting a few passages from the Walther article, passages that concern, naturally, the First Amendment.

______________________

Citizens United & State of the Union 

“When he tells me that he is done making appearances at the State of the Union, I ask him about the last time he attended, in 2010, when he mouthed what looked like the words ‘Not true’ in response to President Obama’s characterization of the Court’s ruling in Citizens United v. Federal Elections Commission. ‘I don’t play poker,’ he says.”

“Either I should take it up so that I learn to have a poker face, or it’s a good thing that I don’t because I’d lose a lot of money. People thought I said something. I assume that they’re correct. I certainly thought it. The president said that Citizens United overruled a century of precedent, which just isn’t true. The chief justice has said that he thought that the president’s criticizing us while we were sitting there was inappropriate. I don’t know that something like that has been done before.”

United States v. Stevens & Snyder v. Phelps

“In Stevens I thought that the real restriction was on conduct, on animal cruelty, rather than on expression,” he says. “There is virtually no way to prosecute the people who are involved in these acts. If you say that you can’t circulate these videos it dries up the market for them.”

Snyder was a tough call,” he says. “Obviously eight of my colleagues disagreed with me.” I ask him what Stevens and Snyder tell us about the limits of the free speech. “The core of the First Amendment is political speech. Any restriction of political speech I think is very dangerous. That is what was involved in Citizens United. This was speech about a candidate for president. What could be more important than that? It’s about the free exchange of ideas concerning public policy, economics, science, art, religion, philosophy, all of those things.”

“Now I can’t speak for my colleagues, but I think I understand the impulse to say that we cannot tolerate any restrictions on freedom of speech because if we allow it even when it’s something like a video of a woman stomping a little animal, then that kind of limitation will begin to restrict the things that need to be covered. But if a court is going to allow restrictions on political speech or intellectual debate or discussion of the arts, our having ruled on these outliers is not going to stop it.”

______________________

There is more, much more, to Matthew Walther’s profile of and interview with Justice Alito, which I recommend to you.

For those interested, earlier accounts of Justice Alito’s views on the First Amendment are offered here, herehere, and here.

Last FAN Column: “First Amendment salon to be launched

Last Scheduled FAN Column: “Red Lion Revisited?

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FAN 12.1 (First Amendment News) — First Amendment salon to be launched

In the spirit of advancing a more informed dialogue about free expression in America, this Monday the law firm of Levine Sullivan Koch & Schulz will host the first in a series of First Amendment salons. The idea behind the salon, says LSKS partner and salon co-chair Lee Levine, is to “engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion about some of the key free speech issues of our times.”Unknown

From time to time, the Salon will host a no-charge, 90-minute discussion concerning a contemporary Supreme Court case, book, article, legal brief, or memorandum. The by-invitation salons will take place at LSKS’s offices in Washington, D.C., New York, Philadelphia, and Denver. A reception will precede each discussion in order to develop a better sense of community. The first salon will be in New York City and will be streamed live by video conference to the firm’s office in Washington, D.C. so that attendees there can participate in the discussion.

The first salon features an exchange between Floyd Abrams and Steven Shapiro and will be moderated by Nadine Strossen. The discussion will focus on McCullen v. Coakley, the abortion protest case now before the Supreme Court.

The co-chairs of the salon are Ronald Collins, Lee Levine and David Skover. Those on the advisory board are: Floyd Abrams, Erwin Chemerinsky, Robert Corn-Revere, Robert O’Neil, Paul M. Smith, Geoffrey Stone, Nadine Strossen, and Eugene Volokh.

The next salon will occur in Washington, D.C.

First Amendment Case to be Argued this TuesdayRobson

This Tuesday the Court will hear oral arguments in the case of Lane v. Franks. The two issues in the case are: (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. This, of course, is the case that may well test the limits of the Court’s 5-4 ruling in Garcetti v. Ceballos (2006).

Professor Ruthann Robson has written an informative and thoughtful overview of the case for SCOTUSblog, which I highly recommend. (See also her weekly posts on First Amendment law, among other things, over at Constitutional Law Prof Blog.)

Last FAN Column: go here

 

 

 

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FAN 12.0 (First Amendment News) — Red Lion Revisited?

E. Joshua Rosenkranz

E. Joshua Rosenkranz

More than a quarter-century ago, Professor Laurence Tribe declared: “The first amendment’s sweeping guarantees have been most compromised in the realm of the most modern medium: electronic broadcasting.” (American Constitutional Law, p. 1004: 1988).

Perhaps mindful of that contention, in his petition for certiorari Joshua Rosenkranz (who heads  Orrick’s Supreme Court and appellate litigation practice) urges the Court to reconsider its unanimous ruling in Red Lion Broadcasting Co. v. FCC (1969), which upheld the Fairness Doctrine over a First Amendment challenge. (Note: Archibald Cox and Erwin Griswold successfully represented the Respondents in the case. The ACLU filed an amicus brief submitted by  Melvin L. Wulf and Eleanor Holmes Norton in which they supported the First Amendment claims.)

The case is Minority Television Project, Inc. v. FCC and Lincoln Broadcasting Co. Here is how Mr. Rosenkranz (a former Justice Brennan law clerk) begins his brief on behalf of a public television broadcaster challenging the federal law in question:

The world has changed dramatically since 1969. In the Vietnam era, top television ratings went to Doris Day, not Duck Dynasty. Back then, the color television was a novelty and high-powered computers, using tape reels and punch cards, filled up an entire room. Today, people carry the same computing power, and color video screens, in their pockets and manipulate inputs with their fingertips. Back then, conventional over-the-air broadcasting was the only way to reach the American family in their living room with audiovisual content on news or public affairs. And technology at the time permitted only a limited number of stations to harness the airwaves effectively. Now, innumerable speakers can reach American families in their living rooms, and just about everywhere else, with almost unlimited audio- visual content on public affairs, news, and everything else imaginable.

That dramatic change is central here. In 1969, in Red Lion Broadcasting Co. v. FCC, this Court invoked the “scarcity” of conventional over-the-air broadcasting opportunities to hold that the First Amendment permits the government to regulate broadcasters more intrusively than all other speakers. But Red Lion’s premise is now profoundly wrong. Conventional over-the-air broad- casters no longer control access to Americans’ eyes and ears. And in any event, there are exponentially more broadcasters now than ever before.

In other words, as times change so, too, should the law. But whatever the fate of Red Lion, he adds, given the Court’s ruling in Citizens United v. FEC (2010), the Justices should apply strict scrutiny review to judge the constitutionality of restrictions on paid political messages that are broadcast. Finally, assuming intermediate scrutiny were to apply, his clients should still prevail since “the only evidence before Congress supposedly linking the ban to the interest that the government seeks to advance consists of guess- work lacking any concrete factual support.” There you have it, from the bold to the modest.

However convincing such arguments may be in the abstract, they failed to convince the Ninth Circuit sitting en banc. The vote was 8-3 with Judge M. Margaret McKeown writing for the majority. The Court sustained the law under intermediate scrutiny analysis and likewise denied the Petitioner’s over-and-underinclusive challenges, along with a facial vagueness challenge and an as applied challenge.

Judge Consuelo Callahan joined the majority’s opinion “only insofar as it
upholds 47 U.S.C. § 339(b)’s prohibition against paid advertisements by for-profit entities.” She dissented, however, from the majority’s “acceptance of § 339(b)’s prohibition of advertisements on issues of public importance or interest and for political candidates.”

Chief Judge Kozinski

Chief Judge Kozinski

Enter Chief Judge Alex Kozinski in dissent. “The United States stands alone in our commitment to freedom of speech,” he starts out. “No other nation,” he adds, “not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment.  These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, ‘uninhibited, robust, and wide-open.'”

From that high rhetorical platform, Judge Kozinski advanced some 11 weighty and related arguments:

  1. “The majority embraces every justification advanced by the government without the least hesitation or skepticism, and without giving proper weight to the true harms caused by the speech restrictions in question.”
  2. The rationale of Red Lion is no longer relevant.”I’m certainly not the first one to note that that rationale—whatever its merits at the time—no longer carries any force.”
  3. “We must . . .  be doubly skeptical: first, because the restriction is content-based and, second, because we have traditionally treated some of the prohibited speech with the greatest solicitude.”
  4. “[C]ommercialization, as that term is commonly understood, deals with commerce; it says nothing at all about advertising for political candidates or on issues of public interest.”
  5. “No one explains why political and issue ads are dangerous, if advertising for non-commercial entities (including product ads) isn’t. If legislators feared influence, why didn’t they worry about stations falling under the sway of non-commercial entities?”
  6. “Even if we look at the evidence developed after the legislation was passed—some of it decades later—there isn’t much to support the ban on political and issue ads.”
  7. “Issue ads can be quite important from a First Amendment perspective. Aside from generating revenue, which public television and radio stations can use to produce more and better programming, issue ads can help educate the public about some of the most significant questions of the day . . .”
  8. “[W]hat’s remarkable about the testimony presented to Congress is that they are nothing but concerns. The legislative record contains no documentation or evidence; there are no studies, no surveys, no academic analyses—nothing even as meaty as the
    rather anemic expert reports introduced by the government in our case. Sure, a lot of people worried that commercial advertising would wreck public broadcasting, but people worry about a lot of things that never come to pass. . . . It . . . seems wholly irrational to make undocumented claims about the likely behavior of public broadcast stations, were they allowed to air advertisements, without first considering the ways in which they differ from commercial entities.”
  9. “[S]tations that receive paid advertising revenue can acquire or produce programs that they could not otherwise afford. Thus, the loss of advertising revenue can’t be dismissed as simply a loss of money; it is, in fact, a loss of speech.”
  10. “[T]he evidence presented by the government in support of these speech restrictions simply doesn’t pass muster under any kind of serious scrutiny—the kind of scrutiny we are required to apply when dealing with restrictions on speech. Even if intermediate scrutiny applies—and I doubt that it does . . . — there is simply not enough there to satisfy a skeptical mind that the
    reasons advanced are rational, let alone substantial.”
  11. “Because ‘[t]he text of the First Amendment makes no distinctions among print, broadcast, and cable media,’ Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 812 (1996) (Thomas, J., concurring in the judgment in part), Red Lion and Pacifica represent a jarring departure from our traditional First Amendment jurisprudence.”

Amicus Brief 

Similar arguments along with others are offered in an amicus brief by Robert Corn-Revere filed on behalf of the Cato Institute. His central argument is that the Court “must abandon its technology-specific approach to the First Amendment, if only because to retain it would be tantamount to perpetuating a dangerous legal fiction. Furthermore, Corn-Revere maintains that “[c]ases upholding such regulations, like Red Lion, do not effect a minor adjustment in the applicable constitutional test. Instead, they represent “a complete conceptual reordering” of First Amendment principles and a “virtual celebration of public regulation” of the press. The difference in perspective is so radical it appears to come from “another world.” Lee C. Bollinger, Images of a Free Press 71-72 (1991). In this Bizarro World version of the First Amendment, up is down, black is white, and banning political speech is acceptable because of the “collective right” of viewers and listeners “to have the medium function consistently with the ends and purposes of the First Amendment.” Red Lion, 395 U.S. at 390. According to this philosophy, the government must destroy First Amendment rights in order to preserve First Amendment values.”

Will the Rosenkranz-Kozinski-Corn-Revere arguments ultimately prevail, or will Red Lion survive yet another 45 years of challenges? Stay tuned. Meanwhile, additional information concerning the history of the case is set out below.

The Law Challenged

47 U.S.C. § 399b, which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.

The Cases  

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