Tagged: First Amendment

stairway-to-heaven-1319562-m
0

FAN.4 (First Amendment News)

In this issue of FAN I flag some forthcoming books that should be of interest to First Amendment enthusiasts.  I hope to say more about some of these works when they are published. Before proceeding to the forthcoming books, I want to to share a video link to Justice John Paul Stevens’ February 7, 2014 speech to the ABA Forum on Communications Law (hat tip to Steven Zansberg). I also want to to highlight a just-released book.

Former Stanford University President and former dean of the University of Chicago Law School Gerhard Casper has published a book entitled The Winds of Freedom: Addressing Challenges to the University (Yale University Press, 248 pp.). Chapter 4 of that book (pp. 64-83) is titled “Corry v. Stanford University: The Issue of Free Expression.” The Cory case involved a challenge to Stanford’s speech code. Anyone familiar with Professor Casper’s impressive scholarship will want to examine this book. (On a related front, this April Yale University press will release the paperback version of Dean Robert Post’s Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.)

Now, onto the forthcoming books and a few related matters:

  1. Stanley Fish is Coming!: Following the general Casper-Post theme, Stanley Fish offers his own unique perspective in Versions of Academic Freedom: From Professionalism to Revolution — The Rice University Campbell Lectures (192 pp, Univ. of Chicago Press, Oct. 2014). Here is a description of the book: “Providing a blueprint for the study of academic freedom, Fish breaks down the schools of thought on the subject, which range from the idea that academic freedom is justified by the common good or by academic exceptionalism, to its potential for critique or indeed revolution. Fish himself belongs to what he calls the ‘It’s Just a Job’ school: while academics need the latitude—call it freedom if you like—necessary to perform their professional activities, they are not free in any special sense to do anything but their jobs.  Academic freedom, Fish argues, should be justified only by the specific educational good that academics offer. Defending the university “in all its glorious narrowness” as a place of disinterested inquiry, Fish offers a bracing corrective to academic orthodoxy.”
  2. Press Freedom & Press Performance: University of Texas Journalism Professor Regina Lawrence has revised the late Timothy E. Cook’s edited work entitled Freeing the Presses: The First Amendment in Action (Louisiana State University Press, 2nd ed., June 2014). Contributors include: Charles Clark, Jack Weiss, Frederick Schauer, Michael Schudson, Ralph Izard, W. Lance Bennett, Craig Freeman, Diana Owen, Emily Erickson, Timothy Cook, and the new editor.
  3. U.S. v. Stevens — the book: In Animal Cruelty and Freedom of Speech: When Worlds Collide (Purdue University Press, pp. 260, May 2014) Wake Forest Law Professor Abigail Perdue and Dr. Randall Lockwood (senior vice president for Forensic Sciences & Anti-Cruelty Projects of the American Society for the Prevention of Cruelty to Animals) offer a detailed case study of the Stevens case. The authors provide a survey of important issues facing society in the area of animal welfare. “The Stevens case included various ‘hot topic’ elements connected to the role of government as arbiter of public morality, including judicial attitudes to sexual deviance and dogfighting. Because it is one of only two animal rights cases that the US Supreme Court has handled, and the only case discussing the competing interests of free speech and animal cruelty, it will be an important topic for discussion in constitutional and animal law courses for decades to come.”
  4. Boy Scouts of America v. Dale – the book: The next addition to the University Press of Kansas’ impressive Landmark Law Cases and American Society series is Judging the Boy Scouts of America: Gay Rights, Freedom of Association, and the Dale Case (272 pp., May 2014). In this forthcoming book, Willamette University Professor Richard J. Ellis “tells the fascinating story of the Dale case, placing it in the context of legal principles and precedents, Scouts policies, gay rights, and the “culture wars” in American politics.”
  5. The State of Funeral-Picketing Laws — The folks over at the First Amendment Center have just released a special report entitled the “Constitutionality of State Funeral-Picketing Laws Since Snyder v. Phelps.” The report was prepared for the Newseum Institute’s First Amendment Center by a team of law students from the Columbus School of Law at The Catholic University of America and examines the legal and legislative responses, as of January 1, 2014, to Snyder v. Phelps.
  6. In light of the recent passing of Professor George Anastaplo, I thought I would alert readers to some of his works on free speech, which include: Reflections on Freedom of Speech and the First Amendment (2007); The Amendments to the Constitution: A Commentary (1995, pp. 47-58); and The Constitutionalist: Notes on the First Amendment (1971 & 2005). Finally, for an audio file of Professor Anastaplo’s arguments before the Supreme Court in In re Anastaplo, go here.
  7. Last Issue of FAN: If you missed it, go here.
  8. Next Scheduled Issue of FAN: Wednesday, March 5th.
stairway-to-heaven-1319562-m
0

FAN.2 (First Amendment News)

Thanks to everyone who sent along information for this and future FAN columns. For those who missed the first column, go here. One of the aims of FAN is to help build bridges between scholars and litigators, liberals and conservatives (and libertarians, too!), and between journalists and all others interested in the First Amendment and freedom of expression. To that end, here is more free speech news:

  • Speech — Justice Stevens & The First Amendment: In a February 7, 2014 speech to the ABA Forum on Communications Law (as of yet unpublished), retired Supreme Court Justice John Paul Stevens said some interesting things about the free expression law of the First Amendment. Here are a few samples:

— Re the Bose Corp. v. Consumers Union of United States, Inc. (1984) product disparagement case, though Justice Stevens ultimately wrote the majority opinion in the 6-3 case, when the cert. petition was first considered at Conference Stevens and most of his colleagues voted to deny review. Justice Byron White, however, relisted the case in order to write a dissent from the denial of cert. Ultimately, however, White persuaded his colleagues to hear the case and the rest is, as they say, history.

— Similarly, the Justices originally planned to deny review in Harte-Hanks Communications, Inc. v. Connaughton (1989), a defamation case. Here, too, Justice White drafted a dissent from the denial of cert., which prompted three other Justices (Brennan, Blackmun, and Marshall) to “vote to grant.” When the dialogic dust settled (and there is more to the Stevens’ story), the Court was unanimous and Stevens wrote the opinion. [For more on this case and the Bose one and related stories, see Lee Levine & Steve Wermiel’s The Progeny (2014).)]

— Justice Stevens disapproved of the Court’s judgment in United States v. Alvarez (the 2012 stolen valor case). “I agree,” said Stevens (a WW II Bronze Star veteran), “with the reasoning and conclusion of Justice Alito’s dissent.” Nonetheless, Stevens found  the first sentence of that dissent to be “inaccurate.” According to Stevens, and contra Alito, “the Court did not hold that ‘every American has a constitutional right to claim to have received that singular award.’” All the Court did was strike down as overbroad a particular federal statute; it thus did not condone all such false and deceptive speech.

— During the ABA Q & A period, Justice Stevens was asked if he thought it was necessary to have a constitutional amendment to overrule the 2010 Citizens United case. He replied: “Well, either a constitutional amendment or one more vote.”

Though Justice Stevens’ remarks have yet to be posted or published, you can look for them in the days ahead on the ABA Forum website here.  (Hat tip to Lee Levine and Steven Zansberg.)

  • Are Animal Rights Activists Terrorists? Have you ever heard of the Animal Enterprise Protection Act? Section 43(a) of the Act makes it a crime for anyone who “travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both.” The Center for Constitutional Rights maintains that AETA violates the First Amendment by criminalizing protected speech and expressive activities such as protests, boycotts, picketing and whistleblowing (see here). The district court dismissed the case on standing grounds, though that ruling has been appealed to the First Circuit (see here).
  • Free Press-Fair Trial: Seems that a Marin County public defender objects to the Marin Independent Journal taking photos of his client (an accused serial bank robber) at an arraignment in the Superior Court. According to a MIJ news report, “after the courtroom hearing, MIJ photographer Frankie Frost snapped photos of [the defendant] on public property outside the Hall of Justice as sheriff’s deputies escorted him in a wheelchair back to the jail. Those photos, which we shared with the Associated Press, have been published in the MIJ’s print editions and website.” The public defender balked and filed an 11-page memorandum seeking to enjoin the paper from publishing the photos again. When MIJ objected, Judge James Chou denied its request without prejudice (see here).
  • Upcoming Event: On Friday, February 21, 2014 (12:00-1:00 pm), the Heritage Foundation will host a program titled “Taxing the First Amendment: Using the IRS to Censor Speech?” The participants include Cleta Mitchell (partner, Foley & Lardner), Bradley A. Smith (chairman, Center for Competitive Politics), Eliana Johnson (reporter, National Review), and Kimberley Strassel (editorial board, Wall Street Journal).
  • Next FAN: Wednesday, February 19.
stairway-to-heaven-1319562-m
0

FAN.1 (First Amendment News)

From time to time, I will post some First Amendment news items that might otherwise escape the attention of free expression enthusiasts.  It may be about a controversy or brief or new book or article or conference or what have you.  If you wish to send along your own newsworthy item for consideration, drop my an e-mail.  With that, here is my first dollop of news:

  • On February 15th the Harvard Law Review will host a conference on “Freedom of the Press” in celebration of the 50th anniversary of New York Times Co. v. Sullivan.  Participants include: Mark Tushnet (Harvard), Stuart Benjamin (Duke), Sonja R. West (U. Ga.), RonNell Andersen Jones (BYU), David Anderson (U. TX), Marvin Ammori (New America Foundation), Marjorie Heins (Free Expression Policy Project), Jonathan Zittrain (Harvard), Rebecca Tushnet (Georgetown), Caroline Corbin (U. Miami), Jack Balkin (Yale), Yochai Benkler (Harvard), and Dawn Nunziato (GWU).
  • Speaking of NYT v. Sullivan, Lee Levine (a noted First Amendment media lawyer) and Steve Wermiel (a professor at American University Law School) have just published The Progeny: Justice William Brennan’s Fight to Save New York Times v. Sullivan (American Bar Association, 2014). Check out my SCOTUSblog interview with the authors.
  • Recently, the Minnesota Law Review published a thought-proving article titled “Speech Engines” by James Grimmelmann (U. MD Law).  It is one of the best pieces of scholarship I have seen concerning the regulatory debates over just how the law – of copyright, trademark, defamation, privacy and of the First Amendment – should treat Google’s search engines.
  • Gabriel Schoenfeld, writing in the Weekly Standard, just reviewed Floyd Abrams’ latest book, Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013).  (For Mr. Abrams’ views on McCullen v. Coakley (the Mass. abortion-protest case now before the Court), see  Jonathan H. Adler’s post over at the Volokh Conspiracy.)
  • This June Yale Law School Dean Robert Post will release his latest book, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press, 234 pp., $25.00).  The book is an outgrowth of Post’s 2013 Tanner Lectures at Harvard.  Here is a little excerpt from the publisher’s blurb: “Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.” Post’s text is followed by commentaries by Pamela S. Karlan, Lawrence Lessig, Frank I. Michelman, and Nadia Urbinati.
21

Photographic License to Discriminate?

The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.

800px-Photographer

The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.

New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.

Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.

While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.

Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.

If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

20

Citizens United, Graffiti, and the Web

We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.

As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.

HT: Fred von Lohmann for noting the story on Facebook.

PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.

15

Stanford Law Review Online: Privilege and the Belfast Project

Stanford Law Review

The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.

He concludes:

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.

3

Stanford Law Review Online: Software Speech

Stanford Law Review

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.

0

Stanford Law Review Online: Dahlia v. Rodriguez

Stanford Law Review

The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:

In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”

After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.

She concludes:

Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”

Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.

3

Hearing on National Security Leaks

On Wednesday morning the House Judiciary Subcommittee on Crime, Terrorism, and National Security held a hearing on the recent national security leaks.  I have just finished watching a video of the hearing so you won’t have to (you can thank me later).  Experts testifying included President George W. Bush’s homeland security advisor Kenneth Wainstein, American University Professor Stephen Vladeck, George Mason Professor Nathan Sales, and US Army (Ret.) Colonel Kenneth Allard.

As the witnesses pointed out, this is the third time in a year and a half that Congress has called for testimony on national security leaks.  The sheer frequency of the hearings indicates that Congress should really try to figure out how to reform the Espionage Act, but I am not going to be holding my breath waiting for this to happen.  Today’s hearing raised some interesting questions but unfortunately provided little guidance on how Congress might revise the Espionage Act.

Not surprisingly, Republican members of the Subcommittee largely used this hearing as an opportunity to rail against the lack of a special prosecutor to investigate the most recent national security leaks, while Democrats spent their time pointing out the most recent leaks were nothing new because leaks have been going on since the founding of this country.

The most interesting part of the hearing from my perspective was the Republicans’ attacks on the media for publishing national security secrets.  As I had mentioned in one of my first posts, almost all of the hostile reaction to the most recent round of high-profile leaks was initially directed at the leakers themselves and not the media entities that published those leaks.  Well, no more.  Rep. Lamar Smith of Texas began the attacks on the media at the outset of the hearing when he said that newspapers publish national security secrets not because they are committed to transparency but rather because they want to increase circulation.  Colonel Allard happily jumped on the media-bashing bandwagon, stating that the N.Y. Times “abuses its position” and that David Sanger’s reporting was “the equivalent of having a KGB operation running against the White House.”  (Colonel Allard also had one of the best quotes from the hearing: “In wartime, I am as opposed to the free flow of information as I am to the free flow of sewage.”  Yikes!)

Read More

0

Washington Law Review, Issue 87:2 (June 2012)

Volume 87  | June 2012 | Issue 2

June 2012 Symposium: The First Amendment in the Modern Age

Foreword:

The Guardians of Knowledge in the Modern State: Post’s Republic and the First Amendment

 

Ronald K.L. Collins & David M. Skover

Essays:

The First Amendment, the Courts, and “Picking Winners”

 

Judge Thomas L. Ambro & Paul J. Safier

Public Discourse, Expert Knowledge, and the Press

 

Joseph Blocher

The First Amendment’s Epistemological Problem

 

Paul Horwitz

A View from the First Amendment Trenches: Washington State’s New Protections for Public Discourse and Democracy

 

Bruce E.H. Johnson & Sarah K. Duran

Democratic Competence, Constitutional Disorder, and the Freedom of the Press

 

Stephen I. Vladeck

Reply:

Understanding the First Amendment

 

Robert C. Post

Bibliography:

Robert C. Post, Selected Bibliography of First Amendment Scholarship

 

Washington Law Review

Comments:

Defining “Breach of The Peace” in Self-Help Repossessions

 

Ryan McRobert

Addressing the Costs and Comity Concerns of International E-Discovery

 

John T. Yip